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Friday, April 30, 2004
Friday Florida Law Trivia Answer
According to this statute, Florida's "state protocol officer" is the Secretary of State. The current Secretary of State is Glenda Hood.

Friday Florida Law Trivia!
Florida has a "state protocol officer." Who is it?

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

Prescription Drug Database Coming?
Today's Sun-Sentinel has this story about the prescription drug database bill still under consideration on this last day of the legislative session.

Revision 7
The constitutional amendment Florida voters approved in 1998 to transfer responsibility to the state for most judicial funding takes effect on July 1, and this year's legislative session has finally produced a bill (available here) that sorts out what exactly the state is going to fund. The bill also shows how the state expects to finance part of its funding costs -- by raising a host of fees associated with court activities.

You can read about the funding bill in this story today from the AP.

Not So Important After All
Yesterday, the Florida Supreme Court discharged its jurisdiction in three cases the court had previously accepted for review. Among them was the appeal of this decision from the Fourth District, which on rehearing certified the following as a question of great public importance:

As previously mentioned in this Abstract Appeal post from last August, the case concerned whether an insurance company could be forced to provide coverage to an insured for a claim that was not covered by the insured's policy, based on the insurer's "negligent" investigation of the claim prior to denying coverage and prior to any litigation being filed against the insured. The Fourth District said yes, the insurer could. The decision was a rather interesting expansion of the "coverage by estoppel" doctrine.

Thursday, April 29, 2004
Howard Troxler, columnist for the St. Pete Times, is more than a little bitter about the current legislative session, which is scheduled to end this week. It's a funny sort of bitter, though, which makes this piece worth a read. (By the way, for a little context, downtown St. Pete is currently hosting its annual Shakespeare in the Park performance.)

Wednesday, April 28, 2004
Schiavo News
Today's St. Pete Times has this update on the disagreement between Terri's husband and her parents over visitation. Michael Schiavo has apparently prohibited visitation with Terri while police investigate strange needle-like marks found on her arms last month. Terri's parents have apparently filed a motion asking Judge Greer to order visitation.

Second District: Staying Execution of Money Judgments
The significant appellate decision to which I have been referring lately is this case from the Second District. There, the court delved deeper into its conflict with the Third District over whether the automatic stay of execution permitted by Rule 9.310(b)(1), which requires a bond to be posted in the amount of the judgment plus two years' interest, is the only means of staying execution while a money judgment is appealed. The Third District has held that to be the case. The Second District has disagreed.

In this most recent case, the Second District clarified that a trial court cannot simply allow the judgment debtor to obtain a stay without any conditions and that only with great care should a trial court exercise its discretion to allow a judgment debtor to guarantee less than the full payment of a money judgment. The Second District also pointed out that a debtor with no collectible assets may not need a stay at all, since execution will not yield anything.

The significance of this interdistrict split of authority is that a defendant who loses a big money judgment in the Third District's territory can stay that judgment's execution only by posting a bond in the amount of the judgment plus two years' interest, while the same defendant in the Second District can ask the trial court for a stay upon lesser conditions. Depending on the size of the judgment and the assets of the debtor, the ability to ask for a stay upon conditions other than posting an automatic stay bond may be critical to a defendant's interests.

The Florida Supreme Court will hopefully resolve this conflict.

A very interesting story emerged a few years ago as a result of this unsettled situation. The case was the well known Engle class action against the major cigarette manufacturers. The class action portions of the Engle suit resulted in a $145 billion judgment against the defendants, the largest verdict in history. Anywhere. The defendants were convinced that the trial was flawed to its core, but their appeal had to be to the Third District, which, as explained above, requires a bond in the amount of the judgment plus two years' interest to stay execution. That was a lot of money in that case -- arguably more than any combination of bonding companies could ever guarantee. At the same time, execution of the judgment against the tobacco defendants would likely have had a dizzying impact on the national economy.

The plaintiffs threatened to execute during the appeal. Numerous states quickly passed laws to halt or delay execution of large unappealed out-of-state judgments. For its part, the Florida Legislature passed this new law, which capped bonds in class actions at $100 million per company. The plaintiffs, however, questioned whether the new law was constitutional, at least as it applied in that case, and the situation was filled with uncertainty. How was it resolved? Well, three of the cigarette makers entered a sort of settlement with the plaintiffs, agreeing to pay over $700 million if the plaintiffs would not execute, regardless of whether the verdict was upheld on appeal. You can read more about that agreement here.

That's a high price to pay for uncertainty in the law.

As you probably know, in 2003, the Third District reversed the unprecedented $145 billion verdict on a plethora of grounds and ordered the class decertified. You can read that opinion here. The plaintiffs are currently asking the Florida Supreme Court to review that decision.

You know who you are.

Tuesday, April 27, 2004
Personal Note
Personal blogs can certainly be too personal at times. I am going to try to avoid that here, despite events yesterday that have deeply saddened me. I hope everyone is doing well. I'll be back later.

Monday, April 26, 2004
Appellate Watch
I hope everyone had a nice weekend. I'm still one blog short of a full slate here -- the case I mentioned on Friday as being significant to Florida appellate lawyers. The weekend's pup troubles doused my blogging efforts, but the case (and an interesting story about the issue it concerns) will make its way to Abstract Appeal later today.

Eleventh Circuit: Tax Troubles
Perhaps in the spirit of the tax season, the Eleventh Circuit published its decision in this case, where the court affirmed a $500 frivolous filing penalty the IRS levied against a woman who reported zero income for a year when she made over $26,000. Interestingly, the woman based her appeal on a 1914 Treasury decision, which by her argument showed that the IRS used the wrong form to notify her of its intent to impose the fine. What her legal research missed, though, was that notice by the IRS is now governed by a much newer statute, from 1986, which does not require the IRS's notices to be in any particular form. So close…

Eleventh Circuit: Removal and Waiver
Florida law requires a defendant in a civil case to file a responsive pleading within 20 days of service of a complaint. Federal law permits defendants in state cases to remove them to federal court, where jurisdiction exists, within 30 days of service. Has a Florida defendant who files a motion to dismiss within the 20-day period actively litigated the case and therefore waived the right to remove within the 30-day period? In this case, the Eleventh Circuit said no, where the defendant had not set the motion for hearing and it had not been ruled upon by the Florida court prior to the filing of the notice of removal. The court's opinion is refreshingly short.

Eleventh Circuit: Land Use Restrictions Affecting Religion
The tiny town of Surfside prohibited religious churches and synagogues, though not private clubs or social clubs, from its downtown business area. The town explained its efforts as supporting the area's vital economic interests. In this case, the Eleventh Circuit held that the zoning restrictions could not be enforced because they violated the federal Religious Land Use and Institutionalized Persons Act, which the court held to be a valid enactment.

Eleventh Circuit: Masters Tournament Protesters
Augusta-Richmond County's efforts to require political protesters to obtain permits and provide the county with indemnification agreements failed on First Amendment grounds in this decision from the Eleventh Circuit.

Eleventh Circuit: Sentencing for Sexual Exploitation of Minors
The Eleventh Circuit held in this decision that, under the federal sentencing guidelines, a sentence may be enhanced for activities involving the sexual abuse or exploitation of a minor even if the "minor" involved was actually an undercover law enforcement officer.

Eleventh Circuit: Mandamus For Medicare Claims
A district court lacks mandamus jurisdiction where a plaintiff has not exhausted all available administrative remedies. To see how this fundamental doctrine defeated a curious effort to bring a class action mandamus petition involving Medicare charges, check out this decision from the Eleventh Circuit.

Eleventh Circuit: Municipal Liability
If you are thinking of suing a municipality under 28 U.S.C. § 1983 for the acts of its officers or employees, you may wish to check with this case from the Eleventh Circuit and make sure you avoid the pleading mistake the plaintiff's attorneys made there. The same goes for those defending muncipalities, since the city involved in that case also missed the proverbial boat.

Eleventh Circuit: Defining Witnesses
In this case, the Eleventh Circuit held that the term "witness," as used in the Federal Rules of Evidence, means only a person who testifies personally at trial or whose testimony is introduced at trial.

A Friend In Need
Those who know my favorite four-legged critter may be interested to know that she spent yesterday in emergency surgery, leaving her "parents" most distraught. Thoughts and prayers are appreciated.

Saturday, April 24, 2004
Schiavo News: A Little Help With the Lingo
A reader recently asked me to explain some commonly used legal terms. Because other nonlawyers may wonder what these terms mean, and because they have all been used on Abstract Appeal in the course of discussing the Terri Schiavo saga, I thought I would post my responses on the blog:

"with or without prejudice" -- These terms are used to describe whether a judicial decision is binding with regard to the merits of a legal issue. When a case is resolved without reaching the merits of a question, the court will make its decision "without prejudice" to the person's ability to raise that question in another proceeding. When a case is resolved by deciding its merits, the decision is said to be "with prejudice," and it will be binding on the court that made the decision and all lower courts. A nonlegal example of a decision without prejudice might be if you need to request time off from work and your employer requires you to use a specific form, which you do not use. The employer might reject the request, but not because you cannot have the time off -- because you did not use the right form. Get the right form, and try again. If your request is then denied, it might be thought of as being denied "with prejudice," meaning the merits of the issue you raised have been resolved and will not be revisited.

"res judicata" -- This is a somewhat complicated legal doctrine that civil procedure professors in law schools spend many classes discussing in detail, and its application under Florida law differs in important respects from its application under federal law. Still, in most cases, the meaning of res judicata can be reduced to the notion of "with prejudice" described above: when a court has ruled on the merits of a dispute involving particular parties, the court's decision is binding on those parties, unless it is overruled by a higher court. The decision is said to be res judicata, and it cannot be relitigated.

"writ of certiorari" -- This is a term that is often used very loosely by lawyers and judges. A writ of certiorari is a particular type of order that certain courts are authorized to issue under certain circumstances. It is always issued to a lower court with regard to a particular decision made by that lower court, and it functions by undoing that particular decision. It is procedurally different from an appeal, but the point is the same from the standpoint of the person petitioning for the writ: you want a higher court to reverse a lower court's decision. If you read legal sites like Abstract Appeal, you will somewhat regularly hear about parties requesting (or, more accurately put, "petitioning for") a writ of certiorari, or "cert." In Florida, certiorari petitions are most often used to obtain relief while a case is still going on in a trial court, before the final appeal. In the federal realm, you most often hear about certiorari petitions in the context of final appeals to the United States Supreme Court, which grants the writ when it decides to hear a case.

"amicus curiae" -- This is a Latin term for "friend of the court." It is a status given to a person whom the court permits to make arguments regarding a legal issue in a case, though almost never a factual issue, even though that person is not a party in the case. Amicus curiae briefs are most often seen in appellate courts, where persons who may later be bound by a particular decision attempt to help the court reach the "right" decision. Amici are not parties to a case. They cannot be held liable for anyone else's costs or fees and they cannot participate in fact discovery.

"intervene" -- A lawsuit typically involves people who sue (plaintiffs) and the people they sue (defendants). Sometimes other persons want to be involved in the case as parties. They can attempt to enter a lawsuit, either as another plaintiff or another defendant, by moving to intervene. There are strict legal requirements that apply to intervention. Whereas someone can often be accepted as an amicus curiae based on a very informal interest in a case, it is very difficult to meet the requirements to intervene as a party.

"estoppel" -- This is another somewhat complicated legal concept. In short, it refers to how the law prevents someone from raising a particular legal argument, either because that particular argument has already been decided for that person or because the person has acted in a way that would make it unfair for the argument to be entertained by a court.

"colorable" -- When used to describe a claim, colorable means plausible. It is a very low standard in the sense of merit. A colorable claim is one that may be valid or may not be, but it is at least not wholly frivolous.

Friday, April 23, 2004
Friday Florida Law Trivia Answer
The answer to this morning's question lies in this statute, which requires certain employers, and perhaps all employers, to furnish "suitable chairs, stools, or sliding seats attached to the counters or walls" to employees required "to stand or walk during their active duties." The statute reads as if it was intended to apply to retail stores, but its language encompasses "mercantile and other business pursuits." As you might guess, the law is quite old -- it dates back to 1899, though it has never been discussed in any Florida case.

So if your job requires standing or walking during your active duties, perhaps you should take comfort in your suitable chair.

Have a good weekend everyone. And, hey, appellate folks, check back over the weekend -- in addition to covering a series of Eleventh Circuit cases I've left out the last couple weeks, there is one noteworthy district court decision I've intentionally left out so it can be discussed by itself. It should be significant to appellate lawyers and involves a very interesting conflict in Florida case law. They'll all be blogged this weekend.

Schiavo News
The Terri Schiavo saga is about to pick up steam, again. The Second District has just issued its latest opinion in this series of cases. The decision, which you can read here, rejects Governor Bush's efforts to dismiss Michael Schiavo's pending constitutional challenge on procedural grounds.

Let me back up. You may recall that, last year, the Florida Legislature passed a law that permitted the Governor to order Terri's feeding tube reinserted. The Governor did so, and Michael Schiavo immediately sued the Governor in Pinellas County circuit court to declare that law unconstitutional. The Governor argued that the case should be dismissed for two reasons. First, the Governor argued that he had not been properly served with the suit papers. Second, the Governor argued that the suit was improperly brought in Terri's home county (Pinellas) and should have been brought in his home county (Leon).

Judge Baird rejected the service of process argument because the Governor's attorney appeared in the case on the day it was filed and argued on the Governor's behalf without ever raising an issue about service. Judge Baird thus found the service issue was waived.

Judge Baird rejected the venue argument because, while state actors are supposed to be sued in their home counties, there is an exception when the state actor has affirmatively taken action against the plaintiff in another county and the plaintiff sues there to defend against that action. This exception is called the "sword-wielder doctrine," and the idea is that where the state wields its power against you like a sword, you may sue where you have been affected and not have to travel to the state actor's home county to sue. Judge Baird found that ordering Terri's feeding tube reinserted fell within the sword wielder doctrine and thus venue in Pinellas County was appropriate for Michael's constitutional challenge.

In today's opinion, the Second District agreed on both points and affirmed Judge Baird's decisions.

You may recall that the trial court case has continued, to a point, while Governor Bush pursued his appeal of the service of process and venue decisions. Judge Baird has heard Michael Schiavo's motion for summary judgment in the case but decided to wait for the Second District to rule on the procedural challenges before announcing his decision. This was prudent -- had the Second District decided that Judge Baird lacked jurisdiction over the Governor or that the case should be tried in Tallahassee, then it would be pointless for Judge Baird to have addressed the merits of the case. Now, however, the Governor's challenges have been addressed and resolved in favor of the case remaining with Judge Baird. He is free to rule.

Expect to hear Judge Baird's decision on the summary judgment motion soon.

Friday Florida Law Trivia!
Sorry about the delay. Mr. Hunter Carroll -- Abstract Appeal's usual source of all things trivial, and that's saying something -- is on hiatus this week, leaving me with the weekly law trivia duties. Here goes:

If you work in Florida, what kind of chair are you entitled to?

I'll post the answer today at approximately 4:30 EST.

Trivia Coming Up…
Today's trivia question will be posted soon.

Questions, questions
You may recall this post from early last month, which discussed a Fourth District decision holding the litigation privilege inapplicable to a plaintiff's lawyer's claim against a defendant. The defendant had offered the plaintiff a settlement that minimized the plaintiff's obligation to the lawyer for attorney's fees, and so the lawyer sued the defendant. I noted that at least one person thought that sounded wrong: the dissenting judge. Now, in this order on the defendant's motion for certification, the panel has agreed to certify the following to the Supreme Court of Florida as a question of great public importance:

"Does the litigation privilege of Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Insurance Co., 639 So. 2d 606 (Fla. 1994), apply to claims alleging direct interference with an attorney's fee earned by representing a consumer's claim for unfair or deceptive practices in a sale of a motor vehicle, where the interference arose from a seller-initiated settlement without counsel in which the fee due the lawyer was reduced without the lawyer's consent."
Anyone want to guess how many amicus curiae briefs will be filed in this case, assuming the high court takes it?

Third District: Equal Protection
On Wednesday, the Third District issued a corrected opinion in this case involving abortion and the constitutional guarantees of equal protection. Because the substance of the decision remains the same as it was when the court first issued its opinion, I am going to repeat my original September 3, 2003 post describing the case's significance, with the link to the earlier decision removed:

Earlier today, the Third District issued an opinion that will likely be noticed by the mainstream press for one holding but may be overlooked for another. The court rejected challenges to certain rules of Florida's Agency for Health Care Administration. The Florida rules at issue permit Medicaid reimbursement for abortion-related services only when the life of the mother is threatened or the pregnancy is the result of rape or incest. Florida's rules essentially track the federal law that limits to those same situations the circumstances under which the federal government will reimburse states for their Medicaid costs.

The plaintiffs challenged the law based on the equal protection guarantees found in the federal and Florida constitutions. The plaintiffs argued that the limitations on reimbursement for abortion-related services amounted to discrimination against women "because funding exists for all necessary medical services for men."

The court rejected the federal challenge based largely on the United States Supreme Court's decision in Harris v. McRae. More interestingly, and more likely to be overlooked, the court also rejected an argument that the Florida Constitution's equal protection provision requires a strict scrutiny analysis of any difference in how men and women are treated, an argument based on the 1998 amendment to Florida's provision adding the words "female and male alike" to its guarantee. The court held that the addition of those words to the constitutional provision does not require that a scrict scrutiny test be used to examine all gender-based differences in treatment.

Third District: Constitutional Challenge Procedures
This decision from the Third District should remind folks that, where a county court case could involve a constitutional challenge to a statute or ordinance, the challenge should be conducted through a circuit court declaratory judgment action and then the appropriate appeals process, not by raising the issue when appealing to the circuit court and then attempting to raise it again when seeking second-tier review in the district court.

Fourth District: Lost Transcripts, Lost Appeals
In this case, the Fourth District reiterated that, standing alone, the loss of a portion of a transcript that cannot be reconstructed does not entitle a criminal defendant to a new trial.

Third District: Collateral Estoppel, Criminal Style
Ever wonder when collateral estoppel applies in a criminal case? Sure you have, and the Third District has the answer right here. Nice win, Lisa.

Third District: Juror Nondisclosure
If you have followed Martha Stewart's attempt to obtain a new trial based on a juror's failure to disclose information about himself during jury selection, and you found yourself musing, "I wonder what Florida law has to say about that," then you will want to check out this decision from the Third District. The case explains Florida's test (which is fairly standard) for obtaining a new trial based on juror nondisclosure, and it may give you an idea about what might happen in Martha's case.

Third District: Finality in Probate Appeals
In this case, the Third District suggested that a rule should be developed for final appeals in probate cases that avoids the piecemeal appeal approach permitted under the current appellate scheme. Check out the discussion in Part II of the court's opinion, and footnote 5.

Third District: Jurisdictional Defects
A question for the litigators out there: If you move to dismiss a complaint solely for insufficient service of process and file an answer that includes a defense of lack of personal jurisdiction, have you waived the jurisdiction issue? This decision from the Third District may provide the answer. There, the defendant moved to set aside a default and included with the motion a proposed answer that included a general denial of personal jurisdiction. The appellate court held the issue waived, apparently taking the words "no motion" in Rule 1.140(h)(1) quite literally. That rule provides:

A party waives all defenses and objections that the party does not present either by motion under subdivisions (b), (e), or (f) of this rule or, if the party has made no motion, in a responsive pleading except as provided in subdivision (h)(2).
Though nothing in subdivisions (b), (e), or (f) of Rule 1.140 concerns setting aside defaults, the Third District explained that the defendant made "a motion," and thus the jurisdictional defense was waived.

Fourth District: Merger By Deed
The plaintiff in this case argued that an arbitration provision in a home construction and purchase agreement -- a provision expressly stating that it would survive the closing -- did not survive the closing because it merged into the deed. If that sounds a bit odd, consider that the trial court agreed. The Fourth District reversed.

Supreme Court: Unlawful Compensation for Public Servants
Yesterday, in this case, the Florida Supreme Court resolved a conflict in the district courts over whether a public servant may be convicted of unlawful compensation based on circumstantial evidence. The case involved a Miami-Dade County police officer who pulled over a drunk woman for speeding, had sex with her, and did not give her a ticket. He was charged with unlawful compensation under section 838.016(1), which in essence prohibits public servants from requesting or accepting benefits not authorized by law in return for doing or not doing something the servant does not have to do.

Addressing the conflict issue, the court held that the state could prove the offense through circumstantial evidence, as is the case with most crimes. The court went further, though, and reversed the district courts' holdings (on which there was no conflict) that the state must prove an agreement existed between the public servant and the other person. Instead, the court held, the state can prove a public servant corruptly intended to accept a benefit (here, sex) without having to show an actual agreement existed between the two persons.

The court's decision should simplify bribery trials, shifting the focus away from whether some nefarious deal was being struck and toward whether the public servant wrongly intended to accept some benefit in return for taking (or not taking) some action.

Fourth District: The Importance of Jury Service
In this case, the Fourth District affirmed a trial judge's decision to hold a prospective juror in contempt of court. The prospective juror had attempted to use her job's demands as an excuse to avoid jury duty, and when that did not work, she announced that she could not be impartial in the case. The trial court saw through the ruse and held the woman in contempt. The district court's affirmance begins with some well said words on the importance of jury service to our judicial system.

A reader wrote me to emphasize this case and to recommend linking this story from the Sun-Sentinel. That's much appreciated.

Fourth District: Arbitration
What does it mean to be an incidental beneficiary of an agreement subject to arbitration, as opposed to a third party beneficiary? If you check out this decision from the Fourth District, you will know.

Supreme Court: Speedy Trial
The Florida Supreme Court yesterday resolved a conflict in the districts over whether the state or the defendant is responsible for a defendant's request to continue a trial where the state does not charge the defendant until the end of the speedy trial period and the defendant invokes the speedy trial right but asks for a continuance to allow time to prepare. In a decision available here, the court held that the continuance is attributable to the defendant, not the state. Chief Justice Anstead and Justice Pariente dissented.

This case presented an interesting dilemma. Where a defendant is charged at the end of the speedy trial period and the state is able to bring the case to trial immediately if the defendant invokes the speedy trial right, but the defendant is not able to defend the case immediately, then one of two things could happen: either the law will see the defendant's need for a continuance as the state's responsibility, in which case the defendant will be discharged, or the law will see the defendant's request for a continuance as a waiver of the speedy trial right. Both results are, in some respects, harsh. The majority sided with the state and was unwilling to walk down the path of telling the state that, at least in complicated cases, it needs to bring charges some unknown amount of time before the end of the speedy trial period.

Fourth District: Sua Sponte Rehearings of New Trial Orders
Once a trial court denies a motion for new trial, can the court rehear the matter on its own motion, based on the principle that the trial court generally has authority to reconsider its interlocutory orders? No, said the Fourth District in this case.

Thursday, April 22, 2004
Third District: Long-term Outlook for Short-Term Rentals
Once upon a time in quaint Key West, condo owners in the Shipyard Condominium could rent their units short-term, so long as they did so for less than half the year. Then Key West changed its zoning regulations and prohibited such short-term rentals. Last week, the Third District upheld one unit owner's suit to continue the short-term rental practice, on the theory that such constituted a lawful nonconforming use. You can read the case here. You can also read Robert Lincoln's Florida Land Law post on the case here.

Second District: Lego My Logo
In addition to being a good win by my friends from down the hall, this decision from the Second District decision reinforces the notion that a subsidiary's use of a parent company's logo does not give rise to an apparent agency -- it just denotes the corporate relationship.

Personal Information
This opinion from the Second District contains some personal information about a litigant's medical history. That sort of thing may soon be a thing of the past. You may recall from this prior post that a committee is currently studying how Florida's court system should deal with private information in court documents.

Second District: On Replevin
If you have been looking for a good article describing the in's and out's of replevin actions, you can stop. Just read this decision from the Second District, which involved an incarcerated man's suit against his prior landlord after his former girlfriend removed nearly all of his possessions from the home he previously rented. But wait. That sounds like it should be a claim for conversion. The decision never really sorts that out.

First District: Unforeseeable Frye
Can a Frye issue appear without notice at trial, such that it is reversible error not to stop and hold a hearing on the admissibility of an expert's testimony? That happened in this workers' compensation case, where the First District held that a witness's change in testimony gave rise to an unexpected Frye issue and that an admissibility hearing should have been held, even though that issue was not included in the pretrial stipulation.

Oh, THERE'S the Money…
On Monday, in this post, I discussed a proposed constitutional amendment that would increase Floridians' homestead exemption amount by $25,000, doubling it in most cases. I also questioned whether voters will consider how the amendment would directly affect the cities and counties that rely on property taxes for revenue. Well, it turns out that the amendment's sponsor sees no financial problem at all. According to this site, Florida's muncipalities have billions of extra dollars from property tax collections. Whew.

Tuesday, April 20, 2004
Schiavo News
The AP has this update on the Schiavo saga. Judge Baird held a hearing yesterday to decide whether Governor Bush's attorneys should be able to question Michael Schiavo about his motives in wanting his wife's feeding tube disconnected. Michael takes the position that such matters are irrelevant to his constitutional challenge to the law that permitted the Governor to order Terri's feeding tube reconnected. The Governor apparently believes Michael's motives are "central" to the case. The court took the matter under advisement.

A Nice Legal Look
Today's St. Pete Times has this interesting story about the parents of a woman involved in a hit-and-run crash that killed two children. The parents are refusing to testify regarding their knowledge of the incident, and they may be jailed today for contempt of court if they continue their silence. The story does a good job of sorting through some of the legal principles involved.

Foul Names
A measure to eliminate racially, religiously, or ethnically offensive names from Florida's maps is making its way through the Legislature. Read more about it in this story from today's Tampa Tribune. You might also check out this earlier Abstract Appeal post with links regarding the same proposal.

Whatsoever You Do…
…do it with a permit. The City of Tampa has an ordinance that governs the distribution of food in downtown public parks. A local group trying to feed homeless persons has run afoul of the ordinance, and the story has been recent news in the Tampa Bay area. For more, check out this report from today's Tampa Tribune. (I note that the story refers to a plea proceeding as taking place in Tampa's federal courthouse. I wonder if that is a mistake -- criminal proceedings for violation of a city ordinance should not be taking place in a federal courthouse.)

Mammogram Immunity
It did not happen, but the Associated Press has this story on a bill that could have immunized from lawsuits Florida doctors who read mammogram results. The bill's backers, who will apparently try again when they garner more support, believed the bill would improve mammogram access problems created by doctors' liability concerns.

Monday, April 19, 2004
Homestead Exemption, To Double or Not To Double
Downtown St. Petersburg had an art festival this weekend. As Debbie and I walked to it on Saturday, we encountered tables of people collecting signatures for initiatives to amend the state constitution. One petition in particular caught my eye -- posters supporting it announced that the homestead deduction should be doubled: cut your taxes, double the homestead exemption. As I thought about it, it struck me that the whole idea of having a statewide referendum on whether to increase the homestead deduction was rather alarming. After all, the homestead exemption applies to property taxes, and those are only levied in Florida by cities and counties. Increasing the deduction would necessarily decrease the tax revenues for each city and county. Now, Florida is not exactly swimming in excess local revenues, so it makes you wonder how cities and counties would decrease spending to offset the decreased revenues. Most significantly, and this is what I see as alarming, the cities and counties are basically out of the picture when it comes to the initiative process. Someone sponsors the amendment, citizens across the state cheerfully vote to increase their own exemption, and cities and counties are forced to make the numbers work.

That line of thinking made for a bit heavy of a conversation for strolling an art show, and I eventually put it out of my mind and forgot about it -- until I read this editorial in today's St. Pete Times. It seems the editorial board and I are basically on the same page. I'll bet someone on that board had that same conversation at the art show.

Short Martin
Residents of Martin County may be interested in this op-ed piece from today's Palm Beach Post, which discusses a proposed amendment to the county's growth plan. Not being a resident of that county, I found the piece interesting just because it mentioned that the county has a four-story height limit. No wonder Martin's so short.

Public Status for Private Hospital
Today's Miami Herald has this story on Jackson Memorial Hospital's efforts to acquire the same tort immunity that applies to public hospitals. Actually, the story is really about how a woman who was severely injured by medical malpractice at the hospital would not have been able to recover the settlement she obtained had such limitations been in place. With the legislative session winding down, the fate of the bills addressing Jackson's status will be known soon.

Friday, April 16, 2004
Friday Florida Law Trivia Answer
The Florida Supreme Court decided this issue two years ago in this decision. In the situation described, the Court determined that retaining the election of judges was the correct method of selecting the successor judge and that the Governor would not get to appoint the successor.

Please have a safe weekend.

Friday Florida Law Trivia!
This question explores an apparent conflict in the Florida Constitution relating to the election or appointment of Florida's circuit court judges. This provision provides that Florida's trial court judges shall be elected for six year terms. This provision provides, however, that when there is a vacancy on the trial court bench, the Governor shall be entitled to appoint a successor from a list forwarded to him by a judicial nominating commission.

"Qualifying" is the period during which candidates file their papers to run for a judicial office. What happens if, after the qualifying begins and candidates qualify to run for a particular office, but before the incumbent judge completes his or her term, the incumbent vacates the office? Does the Governor get to pick the successor judge or does the election go forward? Or is some other procedure used?

I will post the answer later today.

Thursday, April 15, 2004
Gay Marriage Challenge
Even buried in drafting a brief I could not avoid hearing about this story today -- according to the Associated Press, six same-sex Florida couples filed suit today in Monroe County circuit court to challenge Florida's statutory ban on gay marriages. The story suggests that the challenges are based on the equal protection, due process, and privacy rights found in the Florida Constitution.

The story devotes some attention to the circuit judge who has been assigned the case. More interesting would be a discussion of how the Third District is likely to rule on these issues when the trial court's decision is appealed there, and then of course how the Florida Supreme Court would rule if and when it eventually gets the case. Does anyone recall how the trial judge in Massachusetts ruled?

The questions that will be presented by this case are largely questions of law, the sort of questions that appellate courts will decide with little, if any, deference toward the trial court's decision. A factual record will be critical in some respects, but the evidence that is presented will likely be just as useful to the appellate courts as it will be to the trial court.

Another interesting persona angle assumes that a state officer besides the Attorney General has been sued. If so, then I wonder whether Governor Bush (who is ultimately the head of all unelected executive branch officers and employees) will decide to hire private counsel to litigate the case or whether he will allow the Attorney General and his assistants to handle it for him. The Governor has hired Barry Richard for a number of high profile cases in recent years, and many visitors to this site probably know that the Governor hired Ken Connor last year to defend the law enacted to keep Terri Schiavo alive. We'll see.

Another angle that would be worth at least a mention is whether the suits also involve the federal constitutional counterparts to Florida's equal protection, due process, and privacy provisions. They might not, but either way would be an interesting strategy decision.

I am not going to predict how these cases will turn out. Much of what is to be decided here falls into an area of law that has little binding, or even persuasive, precedent. Social philosophy and judicial temperament will be as important to the decision-making process as any previously decided case will be, and to understand how those factors will play out, you must understand who the decision-makers will be. Right now, we cannot know that. Three judges from the Third District will be randomly selected, and the Florida Supreme Court may have a different makeup by the time this case runs its no-doubt multi-year course. Settle in for the ride.

Certifiably Excellent
More congratulations are in order. Please direct them (well ordered, of course) to Sonya Hoener, of Marks Gray, who today I learned also passed this year's examination to become board certified in appellate practice. We have a good class, this group from 2004. So far, I know that it includes Tim, Shannon, and, well, me.

I don't feel so caught up anymore. If only there were 36 hours in a day -- then I could work on giving clients outstanding appellate advocacy and advice as well as blogging all the interesting legal items of the day. Until my motion to extend the day length is granted, though, there will probably be mornings like this one, where I just can't break away to blog all the neat goings-on. Soon! Meanwhile, thanks for stopping by.

Wednesday, April 14, 2004
Caught Up on the Florida Side
Whew. I'm up to date on recent Florida case law. Between now and tomorrow morning, I will catch up on some rather interesting Eleventh Circuit cases that I have not gotten to in the last couple of weeks. Then I will finally feel like I've recovered from moving, the certification exam, and a very busy case load over the last month or so. I also have a short list of topics that I have been unable to address, some suggested by readers. They'll be making their way here soon. Back in blog.

Questions, questions
Is a state employee who wishes to sue the state for employment discrimination required to comply with the presuit notice requirements applicable to tort suits against the state? In this case, the Second District said yes, an employee who intends to bring a claim under the Florida Civil Rights Act against a public employer must comply with the presuit notice requirements of section 768.28. The court also certified the following to the Florida Supreme Court as a question of great public importance:

This case is fascinating on a number of levels.

First, the plaintiff's argument. She argued that her claim sounded in contract, based on an employment relationship between herself and her state employer. The court rejected this argument out of hand and focused on whether the plaintiff's discrimination claim qualified as a tort. But consider her argument for a minute -- she characterized her claim as a contract claim, even though her suit was under a statute that prohibits workplace discrimination. That is no contract claim. Why contend that it is? Florida law is clear that state entities can be sued for damages only where the Legislature has affirmatively waived the state's immunity as a sovereign. Section 768.28 is such a waiver, albeit a limited one, for tort suits. Also, statutory authorizations permitting state entities to enter contracts function as sovereign immunity waivers. Thus, unless some other statute offers a waiver of sovereign immunity, a plaintiff will be permitted to sue the state only where the plaintiff's claim alleges the commission of a tort or a breach of contract. This likely put the plaintiff in this case between the proverbial rock and a hard place: if her claim was a tort claim, she needed to (but did not) comply with the presuit notice requirements of section 768.28; if her claim was not a tort claim, the limited waiver of sovereign immunity found in that statute would not apply, leaving her with a need to find some other ground to assert that the state waived sovereign immunity. She turned to a contract theory, which obviously did not work.

The second aspect of the case that fascinates me is where the above analysis leads: if statutory violations are not "torts" within the meaning of section 768.28, then can the state be said not to have waived sovereign immunity with respect to those statutes? This question is surely not limited to claims under the Florida Civil Rights Act. The Second District avoided such concerns by holding that claims under the Florida Civil Rights Act allege torts within the meaning of section 768.28. The court never addressed what might result if the converse conclusion were reached.

The third interesting aspect of this case concerns the court's analysis. The Second District expressly cited and relied upon a Florida circuit court order that the First District affirmed without opinion. This was unusual -- Florida's district courts rarely rely upon trial court decisions in other cases. This might also be disturbing to some people, since trial court decisions are often impossible to locate when researching a legal issue. If trial court opinions can be relied upon as persuasive authority, this could favor repeat litigants who collect cases in personal libraries based on their own litigation. It is surely no coincidence that the district court was made aware of a circuit court decision on point and the defendant in this case was a state agency.

The final interesting aspect of this case concerns where it will end. As mentioned above, the plaintiff is caught in a difficult situation. Arguing that section 768.28 does not include statutory violations such as a violation of the Florida Civil Rights Act is an argument with dangerous implications, and one that the plaintiffs' bar as a whole probably would not like to see asserted, let alone won. The plaintiff will have to maintain that her claim is not for a tort at all but for a breach of contract, an argument with little appeal, if any. So, the plaintiff has a certified question of great public importance, but will she use it and ask the Florida Supreme Court to take the case? Or will she just drop the matter? We'll see.

First District: Vulnerable Adults
This decision, issued yesterday by the First District, is interesting because it explains that, under Florida law, protective services may be instituted for adults unable to care for themselves only where an adult is found subject to abuse, neglect, or exploitation by another. The court rejected a contrary argument by the Department of Children and Families.

Tuesday, April 13, 2004
Unconstitutional Break?
The Florida Legislature took a ten-day break during Passover and Easter. No less a respected authority than retired Judge Tom Barkdull (one of Florida's longest serving judges, and the man for whom the Third District's courthouse is named) has said that in doing so, the Legislature may have violated the Florida Constitution and jeopardized the validity of any actions taken for the remainder of the present session. Read about it here in today's St. Pete Times.

Almost There…
And with that flurry of updates, I'm nearly caught up with reviewing the interesting decisions of the past few weeks. By tomorrow morning, I will be.

Third District: Another Schwartzism
Fans of Chief Judge Schwartz will appreciate his special concurrence in this case from the Third District. Chief Judge Schwartz agreed that a search for a missing devisee had been diligently performed but pointed out that the missing devisee was a physician, admitted to practice in both California and Florida, who had the "commonplace name of Dr. Jane Elizabetrh Espejo-Norton."

Fourth District: Live By the Sword…
There are several reasons why foreign plaintiffs might believe that their best opportunity to collect a large damages award lies with bringing suit in an American court: in America, juries, not judges, generally decide factual issues regarding liability and damages; American courts have few, if any, limitations on damages, especially punitive and noneconomic damages; some Americans share a bias against what are perceived to be profit-hungry corporations; the "American Rule" holds that losing parties are generally not required to pay the winners' attorney's fees; corporate defendants may hold assets in America; and, finally, American judgments are well regarded internationally and can be expected to withstand collateral attacks during foreign collection efforts.

So it should come as no surprise to see a foreign plaintiff sue a corporation in America for foreign actions resulting in foreign damages. That's what happened in this case, where Ecuadorian shrimp farmers sued Du Pont in connection with Benlate, a pesticide that DuPont sold to Ecuadorian banana farmers that allegedly ran off the banana farming lands into Ecuadorian shrimp farms, killing the shrimp. A jury found Du Pont liable for $12 million in damages on a negligence theory regarding Du Pont's failure to warn users of Benlate's run-off problems. The Fourth District, however, held that the Ecuadorian shrimp farmers' claims were preempted by the Federal Insecticide, Fungicide, and Rodenticide Act, which preempts any state law claim regarding the labeling of insecticides, among other things. The court observed that while FIFRA would not preempt Ecuadorian law to the extent it imposed liability on Du Pont for its actions, the plaintiffs chose to sue solely under Florida law, which was preempted.

Fourth District: Cats v. Kids
Child visitation cases can be heartbreaking, and they can make you wonder what sort of judicial system permits a court to make deeply personal decisions in the lives of a family. Well, unfortunately, when two parents war over the specifics of child visitation, someone must be the final arbiter, and in this case that someone was the Fourth District, which decided that a father must choose between his cats and visitation at his home with his children.

Fourth District: Not Right For This Reason
Appellate lawyers sometimes take comfort in the notion that, per Florida's "tipsy coachman" rule, a trial judge's ruling will be affirmed if it can be said to be correct for any reason, not just the reason the trial judge gave. There are limits to this right-for-any-reason rule, though. For instance, check out this decision from the Fourth District, where the court, in reversing a breach of contract verdict unsupported by competent substantial evidence of the alleged breach, refused to consider an alternative theory of breach that was unpled and untried, though perhaps well founded in the evidence.

Fourth District: Family Law Attorney's Fees
Family law practitioners will be interested to know that Rule 1.525 applies in family law cases, but not to post-decretal orders in family law cases, according to this decision by the Fourth District.

Fifth District: A Little Less Conflict On The Three-Strikes Law
Some of you may recall that, several months ago, I had he pleasure of arguing a case in the Florida Supreme Court regarding whether Florida's original "three-strikes" law was unconstitutional because it violated the single subject rule and, if so, whether the curative legislation passed in the wake of a declaration of the prior law's unconstitutionality could be retroactively applied to sentences for crimes already committed. (We were appointed by the court as counsel for an indigent defendant. Check out this prior post for more information.) The Supreme Court has not yet ruled in that case, but our client's position on both issues (yes to single-subject violation, no to retroactive application) has been bolstered by this en banc decision of the Fifth District. In a cogent analysis, the Fifth District has receded from a prior decision in which that court concluded the curative legislation could be retroactively applied.

This clears up the conflict among the districts on the retroactivity issue. The districts remain divided, 3-2, over whether the original legislation violated the single-subject rule. We continue to wait for the Supreme Court's decision.

Fourth District: Special Investigative Committee
Florida law has codified the Delaware corporate law practice of permitting a special litigation committee to make a controlling decision on whether a shareholder derivative suit, ostensibly brought on behalf of a corporation, is actually in the corporation's best interests. In this case, the Fourth District held the Florida statute permitting special investigative committees does not, contrary to the Delaware common law practice, permit a trial court to second-guess the reasonableness of the committee's decision. Shareholder litigation decisions are rare in Florida case law, but they are nice to see.

I'm catching up… still some very interesting cases left to mention…

Third District: Understanding Gun Use
Is pointing a gun at someone the use of deadly force? No, said the Third District in this case. Firing a gun would be, but not merely pointing it.

Third District: Workers' Compensation Immunity
Plaintiffs' attorneys will no doubt approve of this decision from the Third District, which affirmed a decision to let a jury decide whether an employer's actions created a "substantial certainty" of injury to an employee.

Fourth District: Ineffective Assistance
Is appellate counsel constitutionally ineffective for failing to raise an unpreserved argument that would show fundamental error? Yes, said the Fourth District in this case, which involved a burglary conviction for an offense that took place within the Delgado window.

Third District: The Shortcomings of Aspersions
In this case, the Third District offered us this memorable quote:

Although the hospital's characterization of the process as "extortion" may not exceed the bounds of permissible advocacy, a legitimate legal tool is not rendered illegitimate by calling it a bad name.
Well said.

Chief Judge Farmer: Rule 3.853 Implicit Limitation?
Rule 3.850 permits those convicted of crimes to obtain post-conviction relief but excludes grounds that could have been raised on direct appeal from a judgment and sentence. Rule 3.853, the DNA testing rule, includes no similar express limitation, but in this case from the Fourth District, Chief Judge Farmer filed a special concurrence suggesting that such a limitation should be read into that rule.

Third District: Record Citations
This case from the Third District is a good example of the importance of backing up every factual statement in an appellate brief with a citation to the record on appeal.

Fourth District: Attorney's Fees Against Insurers
Insurers faced with the prospect of providing coverage under a coverage-by-estoppel theory for claims that are not covered by a policy can take heart in this decision from the Fourth District. In a brief paragraph at the conclusion of the decision, the court held that an insured pursuing a coverage-by-estoppel theory is not entitled to recover attorney's fees under section 627.428, since the statute permits fee awards only for insureds who recover "under a policy." Recovery (or potential recovery) under an estoppel theory is not a recovery "under a policy."

UPDATE: This opinion was withdrawn and a clarifying opinion was issued, containing a different rationale. See this post.

Fourth District: Releasing Negligence
The importance of a well-drafted release is underscored by the Fourth District's decision in this case, where the court held that a boxer's execution of a release in favor of a nightclub did not release the nightclub from its negligence and that the boxer accepted only those risks inherent in boxing itself. In all likelihood, the nightclub intended to draft a release that was a bit more broad.

Third District: Dangerous Lakes?
Florida law tends to be fairly hospitable to tort claims by injured persons. The plaintiffs in this case would disagree, though, with respect to claims involving swimming in lakes. The Third District held that the plaintiffs had no claim against the owner of a man-made lake in which their child drowned. The plaintiffs asserted that the lake contained a precipitious drop-off that was unknown to swimmers, but the court refused to consider such a feature the sort of unusual condition or trap that would permit liability to be assessed against the owner.

Monday, April 12, 2004
Third District: Legally Impossible Burglary
If you enjoy classic common law trivia, you will no doubt appreciate this decision from the Third District. The court considered the puzzle of whether a man who escaped from jail and then broke into a nearby business could be charged with escape and burglary, with the predicate to the latter being the intent to commit the crime of escape. The court held that the burglary offense was legally impossible because the crime of escape is complete when a prisoner obtains freedom from custody. The prisoner could not, therefore, intend to commit the crime of escape when he broke into the building, as he had already completed that crime. Chief Judge Schwartz's opinion is chock full of authorities, including one case that offered a footnoted hypothetical concerning the antiquated but entertaining notion of one Lady Eldon attempting to smuggle French lace into England without paying the customs duty that no longer existed. Great stuff.

Third District: Threats To Witnesses
If you practice criminal law, you may wish to check out this decision from the Third District, which explains the procedure to be followed where one side seeks to introduce evidence that threats or intimidation has caused a witness's testimony to change.

Happy, Happy
Happy birthday to Florida's Senior Deputy Solicitor General, Lou Hubener. Lou is an excellent appellate attorney -- one of the State's very best -- and an all around good fellow. I hope he's taking the day off.

More Certifications
Congratulations are in order for Tim Weber, of Battaglia, Ross, Dicus & Wein. Like Shannon Carlyle and yours truly, Tim is among the newest crop of appellate attorneys to become certified by The Florida Bar as appellate specialists. Congrats, Tim.

Second District: Employee Misconduct
If an employee disobeys an employer's policies, does that action amount to the sort of misconduct that will disqualify the employee from receiving unemployment benefits? Not always. Check out the result in this decision from the Second District.

First District: Workers' Compensation
Workers' compensation is unique, in the First District's view. That's why, in this case, that court held that a prevailing claimant in a workers' compensation case may recover mailing costs, even though the Statewide Uniform Guidelines for Taxation of Costs in Civil Actions do not permit a prevailing party to recover such costs.

First District: JCC Lacks Authority to Sanction
A Judge of Compensation Claims is a statutory judicial position that lacks inherent judicial authorites, the First District held in this case. The court found that nothing in Chapter 440 grants a JCC the authority to sanction an attorney for violating the Rules of Professional Conduct.

Second District: Trial Court To The Rescue! Oh, Wait.
Let's say the prosecution fails to elicit testimony on an essential element of a criminal offense. Can the trial judge jump in with a line of questioning that explores that issue? Not if it results in a conviction. This decision from the Second District offers a good example.

Second District: Imputed Income
The concept of imputed income can be a bit startling when you first learn of it: in computing the amount of money you owe for support, such as with alimony, a court can factor in income for you that you do not earn, based on the notion that you could earn that much money if you applied your "best efforts" to your income-generating endeavors. Those who follow family law cases involving imputed income may be interested in this decision from the Second District, which reached the unusual conclusion of reversing a trial court's decision to impute income.

Back In Blog
I hope everyone had a marvelous Easter weekend. Abstract Appeal was silent for the last several days, due to a brutal flurry of activity at work and then a planned holiday getaway with Debbie. We went to Austin, Texas, just to visit. Neither of us had been there before, and we enjoyed touring the absolutely spectacular Texas state capitol complex and the Lyndon B. Johnson Library and Museum. I had hoped to visit the Texas Supreme Court building, but it was closed while we were there. Another time.

Some travel time gave me a chance to catch up on some recent case law, and much of today will be devoted to blogging noteworthy cases that have been released during the last few weeks but have not yet been discussed here. There are some very interesting cases to be discussed today.

Friday, April 09, 2004
Friday Florida Law Trivia Answer
The Supreme Court of Florida's official motto is the Latin phrase Sat Cito Si Recte (pronounced as saht see-to see rayk- tay), which means "Soon enough if done rightly." The phrase indicates the importance of taking the time necessary to reach the correct result.

A good discussion of the Court's seal, its history, and meaning may be found here.

Please have a safe and enjoyable holiday weekend.

Friday Florida Law Trivia!
The seal of the Supreme Court of Florida contains the Latin motto, "Sat Cito Si Recte." What does this motto mean?

The answer will be posted this afternoon.

Matt is on TDA
Matt wanted me to let you know that he has been working very hard (at work) this week. He is going to try to have some postings later today, so please stay tuned...

Tuesday, April 06, 2004
Florida Law Challenge: HB 1849
Hunter and I thank the people who took the time to send in their thoughts on possible constitutional challenges to HB 1849. We are glad to report that the winner of our challenge is, would you believe, a fellow blogger, Robert Lincoln. Robert is a Sarasota attorney who runs the Florida Land Law site, flalandlaw.com. Robert also runs a blog relating to Florida land use law. It's very well done. You can check it out here.

Robert's entry suggested nine possible constitutional deficiencies with HB 1849.

Hunter and I have gone through Robert's suggestions, and through the suggestions made by everyone else, and we have condensed the multitude of challenges down to seven primary arguments. We will list them here, but please keep in mind that we are not taking any position on their merits, just as we are not taking any position on the merits of adding a sixth district court of appeal. We are just intrigued by the discussion. That said, here are the seven primary arguments offered by Abstract Appeal readers against the constitutionality of HB 1849:

1. Were it to become law, the bill potentially violates Article V, section 9, of the Florida Constitution in that the Legislature is acting in the absence of a certification from the Florida Supreme Court that a sixth district court of appeal is needed.

2. Were it to become law, the bill potentially violates Article V, section 9, of the Florida Constitution in that the Legislature is acting without having followed the constitutionally prescribed procedure to request a certification of need from the Florida Supreme Court.

3. Were it to become law, the bill potentially violates Article V, section 9, of the Florida Constitution in that the Legislature failed to pass HB 1849 by a two-thirds vote of the membership, inasmuch as the bill increases the number of judges by more than the need certified by the Florida Supreme Court.

4. Were it to become law, the bill potentially violates Article V, section 9, of the Florida Constitution in that the Legislature failed to pass HB 1849 by a two-thirds vote of the membership, inasmuch as the bill decreases the number of judges by more than the need certified by the Florida Supreme Court. (The bill decreases the Fourth District's size by one judge.)

5. Were it to become law, the bill potentially violates Article V, section 9, of the Florida Constitution in that the Legislature has decreased the number of judges and made that decrease effective prior to the completion of the eliminated judge's term. (The bill decreases the Fourth District's size by one judge.)

6. Were it to become law, the bill potentially violates Article II, section 3, of the Florida Constitution in that the Legislature has improperly spoken to the case law that will govern in the sixth district, requiring the Florida Supreme Court to adopt a rule in this regard.

7. Finally, were it to become law, the bill potentially violates Article I, section 9 and Article II, section 3, of the Florida Constitution in that the Legislature has arbitrarily attempted to make the bill's provisions creating the sixth district non-severable from the remainder of the bill, which addresses the judicial needs of Florida's circuit courts.

Once again, we are not saying that the bill is unconstitutional for any of these reasons.

Also, you may be interested to know that more than one person suggested the bill's April 1, 2005 effective date for the new district's creation is -- how shall we put it? -- constitutionally insincere.

Thanks to everyone who participated in what made for a very interesting Florida law challenge. -- Matt & Hunter

Civics, Part II
From this piece against tightening the rules on citizens' petitions to amend the state constitution, you might get the impression that St. Pete Times columnist Howard Troxler didn't like the part of his civics class that covered the representative form of government.

Civics, Part I
Today's Sun-Sentinel has this story on a legislative proposal to require most degree-seeking students in Florida's community colleges to take a civics class focusing on the fundamentals of our national government.

Maneuvering the Slopes
Here's a headline from today's Sun-Sentinel that may catch you by surprise: "Racial Worries Stall Bill On Belts"

Mailing Lists and Lawyers, Part II
Today's St. Pete Times has this interesting story on how Florida's lawyers are looking into whether they can avoiding having to disclose, upon request, their own membership list and mailing information.

Mailing Lists and Lawyers, Part I
Yesterday's Times-Union had this story on how lawyers are using various public databases to compile mailing lists for potential clients, to the annoyance of some. (Many thanks to the loyal reader who sent the link.)

Florida Law Challenge
We have a winner. More info to come later this morning.

Monday, April 05, 2004
Florida Law Challenge
Just a reminder -- if you'd like to participate in Friday's challenge regarding the constitutionality of the current House bill to expand the district courts of appeal, get your entry in by 5 PM EST today. Hunter and I will post the winner, and the winner's list of potential challenges, tomorrow. For more information, scroll down to Friday's posts or click here.

More Certified Appeal
Congratulations are in order for Shannon Carlyle, of the Carlyle Appellate Law Firm, who also learned today that she has qualified to be board certified in appellate practice. That makes at least two of us who are now specialists-in-waiting, so to speak. The certification period officially begins June 1.

Certified Appeal
A personal post here: Good news arrived in the morning mail. Last month I took the exam to become board certified by The Florida Bar in appellate practice, and I learned this morning that I passed. Preparing for that exam was one of the things that kept me quite busy last month, though I never mentioned it on the blog.

For those who may be unfamiliar with the system, The Florida Bar offers certifications in a limited number of specialties, including appellate practice. While some state bars grant specialty certifications after a person simply attains a minimum level of experience, The Florida Bar requires a minimum level of experience, peer review, and success on a certification exam. The historic pass rate on the appellate exam, which you can take only after passing the experience and peer review portions of the process, is about 40 percent, I understand.

So, I'm ecstatic. I can now update the "About" page on Abstract Appeal to say that, as of June 1, 2004, I am a board certified appellate practice specialist. I wonder if the delay on the certification's effective date makes me a specialist-in-waiting…

Rush News
Today's Palm Beach Post has this update on the Rush Limbaugh litigation. In short, the Fourth District will hear oral arguments in the case this week. You may recall that Rush is petitioning the court to issue a writ of certiorari to a Palm Beach trial court, telling that court it erred when it refused to prevent state prosecutors from examining Rush's medical records. The prosecutors obtained the records by search warrant. Rush maintains they should have been obtained, if at all, by subpoena -- a process that would have given him an opportunity to appear and object.

Perhaps equally interesting, the Post's front page has the following sub-heading for this story: "An appellate court's ruling this week may end -- or ignite -- doctor-shopping charges," while the story itself says, "The appeals court will hear Limbaugh's argument Wednesday and is expected to rule within a few weeks." A ruling the same week as the oral argument is nearly unheard of, unless it simply denies the relief requested without any comment from the court. That does not seem likely in this case. The truth is, Florida's appellate courts almost never indicate when they will issue a decision in a case, and any bet is a bad one. Personally, I've long been looking forward to the decision in a case pending before the Florida Supreme Court in which the court heard oral arguments back in August -- 2001.

If you're a baseball fan, or a Florida Marlins fan, or if you just like the idea that in a multi-million dollar legal dispute between the Marlins and Lloyd's of London, someone had the gumption to call an issue a "red herring," check out this story in today's Miami Herald.

Just Who Are They?
Today's Times-Union has two stories on Florida's lawmakers: this one and this one. My favorite tidbit in them? Thirteen current House and Senate members are under 35.

Policy Limits = Liability + Damages
Sometimes it's a simple formula, as in this case described in today's Bradenton Herald.

Friday, April 02, 2004
More Sixth DCA News
I encourage everyone to consider entering this week's trivia "challenge" below, and I'm reluctant to put up a post over that one so soon, but there's a tidbit of news I couldn't get to this morning, and it's just too good to let go.

This really isn't funny. Rather, it's most sad.

As you may have heard, on Tuesday Representative Kyle proposed an amendment to House Bill 1849 that would have affected the ability of judges and justices to finish serving their terms once they complete what is known as the DROP program. DROP is in essence a retirement program that allows state workers at retirement age to continue working while their retirement rate is locked -- a win/win situation, financially speaking, for the state and the worker. Ordinarily, workers must retire at the end of the program's term or face a loss of accumulated funds, but there is an exception for various elected or retained officials with time remaining in their terms. Representative Kyle's proposal (available here) would have removed that exception as it applies to judges and justices through the following language:

The provisions of s. 121.053(1)(b)5., Florida Statutes, shall not apply to justices and judges.
According to various sources, the fallout from this change would land squarely on the shoulders of Chief Justice Anstead, who is apparently due to complete the program next year. He would be forced to leave the bench or forfeit a substantial sum of money.

Fortunately, Representative Kyle withdrew this proposed amendment late yesterday. Before he did, though, Representatives Gelber and Seiler offered an amendment to Representative Kyle's amendment. Their proposal, which you can read here, would have amended Representative Kyle's proposed amendment to read as follows:

The provisions of s. 121.053(1)(b)5., Florida Statutes, shall not apply to justices and judges unless their published opinions and judicial philosophies have been expressly approved by the House of Representatives.
Don't forget to enter the challenge below.

Friday Florida Law Trivia!
Yesterday, the Florida House of Representatives passed a bill that, among other things, seeks to establish Florida's Sixth District Court of Appeal. The version of the bill that was adopted would have the Sixth District headquartered in Hillsborough and serve Hillsborough, Pinellas, and Pasco counties. (Leaving these counties oddly surrounded by the Second District and the Gulf of Mexico.) There would also be some re-alignment of the Second, Fourth, and Fifth districts.

We (Matt and Hunter) are very much interested in the bill that seeks to accomplish these changes. We are particularly interested in the constitutional arguments that are being raised against the bill. For instance, yesterday's debate on the House floor involved numerous representatives calling the bill plainly unconstitutional. Even Representative Kyle, the bill's sponsor, admitted that it deals with "gray areas." We've also heard talk ourselves of how some think this bill is unconstitutional.

So, putting aside the issue of whether Florida could use a sixth district court, and in lieu of this week's Friday Florida Law Trivia question, we present the following Florida Law Challenge:

We would like to know how many bona fide arguments can be made against the constitutionality of House Bill 1849. You can read the bill here. We are not looking for long explanations, just short descriptions of what challenges to the bill might be raised. Send your answer list by email to Matt by clicking on his name below this post or the "Email Abstract Appeal" link in the upper left of this page.

The winner will be the person who suggests the most potential constitutional challenges to the bill. That might be one, two, three, ten, or twenty -- we don't know. We are not going to evaluate the merits of the arguments, unless they appear to have no connection at all to our constitution.

The challenge will run through 5PM EST on Monday, to give folks a little time over the weekend if necessary to think about it. On Tuesday, we will post a list of the winner's arguments, and then all will be free to see for themselves if those arguments seem to have any merit.

Also, please tell us in your email if you would like us to use your name(s) if you win, assuming you even provide us with your name. We understand that many people who read Abstract Appeal may not want their names or employers associated with any particular views on this bill. That's okay. All names will be kept in complete confidence, if requested, and you are free to email in ways that will not reveal the sender's name.

So, tell a friend, pool some knowledge, and take a shot. Good luck! -- Matt & Hunter

Trivia Change
In the wake of the preceding post's news, Hunter and I have decided to try something different for this week's Friday Florida Law Trivia. As we will shortly post, this week's question will actually be a challenge to anyone and everyone out there, and it will concern HB 1849. Stay tuned.

Sixth District
There is much to discuss on the Sixth District front. Most importantly, the House last night passed the bill that would establish a new district court and realign the territories of the Second, Fourth, and Fifth Districts.

You can read the bill here.

You can also read about the bill in today's St. Pete Times, which has this story.

Cemetary Settlement
Today's Palm Beach Post has this story on the state's settlement with Menorah Gardens over its burial-related misconduct.

Bills, Bills, Bills
The Associated Press reports here that the Florida House yesterday passed the much-discussed bill to ban state officials from keeping lists of Florida's gun owners, and the AP has this very interesting report on the status of various measures to amend the state constitution in ways that will reduce the ease with which special interests can now get that foundational document amended.

Correction: We Fall Down, We Sue, We Dismiss Suit
Yesterday, Abstract Appeal included this post about a part-time Marco Island resident who, after falling down an airport escalator, filed a lawsuit against U.S. Airways for failing to warn him of the enhanced dangers alcohol poses to airline passengers at night. Well, today's Naples News includes this story explaining that the man is going to dismiss his suit. Even more interesting, he says he was surprised to learn about the suit being filed on his behalf. Hmmm.

Second District: Second-Tier Cert Review
Slowly but surely, I'm catching up from my moving and work-blitz situation from the last two weeks. My list of Second District cases to blog is thankfully down to one: this decision from last week -- a great case for appellate lawyers to discuss. Multiple readers have requested some views on this case, so I'm going to cover it in detail.

The case involves a Tampa Bay radio talk show host whom the Tampa Bay media refer to as a public housing activist. The Tampa Housing Authority sought to remove her from public housing because of her son's marijuana-related arrest.

The matter was heard in county court, where a jury sided with the housing authority. The trial judge, however, ordered a new trial because a juror slept through most of the proceedings -- something none of the attorneys had mentioned during trial or afterwards. The housing authority appealed to the circuit court, which found no abuse of discretion by the trial judge but did so while viewing the appeal as a petition for writ of certiorari. The housing authority then petitioned the Second District for a second-tier review, a proceeding that is not an appeal but a petition for a writ of certiorari.

A majority of the Second District denied the petition. The majority held that the circuit court's erroneous view of its standard of review was harmless because the circuit court in fact conducted the right inquiry -- deciding whether the county court abused its discretion. The district court then concluded that even if the county court's finding of no abuse of discretion was erroneous, this was not the sort of injustice that should be corrected through the limited second-tier certioari review process.

Judge Villanti dissented. He argued first that the court's inquiry should end upon determining that the circuit court applied the wrong law (viewing the case as a certiorari proceeding, rather than an appeal). He disagreed that a harmless error analysis could apply. Judge Villanti also wrote at length about how the county court's decision to grant a new trial was certainly erroneous, and he eloquently criticized the majority's decision as permitting the housing authority to "expire of wrong in the midst of right."

So, we have two interesting appellate issues. The first is whether second-tier certiorari cases can ever consider harmlessness in connection with a circuit court's application of the standard of review. Judge Villanti relied on the notion that a district court should not excuse a circuit court's incorrect application of the standard of review by considering what result should have been reached if the correct standard had been applied. But the majority applied a different sort of harmlesses analysis -- considering whether the circuit court's incorrect pronouncement of the standard of review was of no moment because the circuit court's actual review followed the proper standard. Judge Villanti did not disagree that this particular harmlessness inquiry was accurate. He disagreed that is was permissible.

Once the housing authority standard of review argument was rejected, the court was left with a classic second-tier certiorari issue: did the circuit court's decision on its merits constitute a departure from the essential requirements of law and result in a miscarriage of justice? The majority said no -- that even if the circuit court was wrong, even if there was an abuse of discretion, that error is not the sort of miscarriage of justice that second-tier certiorari review should correct. In other words, the appeal from county court to circuit court is a full review, and harmful errors can result in reversals, but the review from circuit court to the district court is not a second bite at the apple -- even if the circuit court got it wrong, the error has to result in significant injustice. The majority felt that making the housing authority retry the case did not rise to that level. Judge Villanti disagreed, though I read this portion of his dissent as focusing more on the departure from the essential requirements of law element than the miscarriage of justice element.

Schiavo News
On Wednesday, a reader emailed me links to affidavits by Mary Schindler and Heidi Law, and I posted them here. Now the helpful reader has emailed again, letting me know that Heidi Law swore a second affidavit, and it was this second one, not the first, that was used in connection with the Schindlers' contempt motion. The second affidavit is available here. I've updated the earlier post, too.

Thursday, April 01, 2004
More Sixth District News
A friend with his eye on the Lakeland Ledger emailed me this morning to let everyone know about this article in today's Ledger. The article explains that Representative Kyle is attempting to tie the creation of a new sixth district court of appeal to $1.2 million in funds sorely needed for asbestos abatement in the Second District's Lakeland courthouse. The story also puts to print a popular rumor -- that the proposed Sixth District is ultimately intended to be headquartered further south. Representative Kyle represents Ft. Myers.

You could get the feeling that this pot is just starting to warm, let alone boil. There will be much to talk about on this subject in the coming days.

Sixth District News
The St. Pete Times editorial board has weighed in on the proposal to create a new sixth district court of appeals. They used the words "unnecessary," "pork," and "patronage," if that tells you anything. Read the op-ed piece here.

We Fall Down, We Sue?
A part-time resident of Marco Island thinks U.S. Airways should have warned him that the effects of alcohol are greater at night on airline passengers. The Naples Daily News, which has the story here. Apparently, the man is now suing the airline, and he claims the airline's failure to inform him resulted in trip down an airport escalator.

Court Candor
Two foreign military officers have asked a federal immigration judge to recuse himself, questioning whether he is "fully competent" to preside over the case. The Miami Herald has the story here.

Inconsistent Billing?
On the one hand, we have a bill to prohibit the state from keeping lists of gun owners. On the other hand, we have a bill to create a state list of what prescription drugs each Florida citizen takes. Howard Troxler, columnist for the St. Pete Times takes a look at the logic here in this piece.

Paper Conflict
If you support Representative Wexler's highly publicized efforts to require that paper receipts be generated when electronic votes are cast, you probably will not be very happy with a proposal to eliminate manual recounts of electronic votes in Florida. Read about it here in today's Sun-Sentinel.

Friends, DeLand Style
This article in today's Daytona Beach News-Journal discusses a DeLand ordinance that limits the number of unrelated persons who may live together in a single family home to two. Some residents are challenging the ordinance on grounds it's being selectively enforced against Stetson University students.

Schiavo-Related News?
I'm not sure if the Dr. William Hammesfahr who is the subject of this decision from the Second District is the same doctor well known to those who support Terri Schiavo's parents. Perhaps he is.

More Eleventh Circuit -- Rule Changes
The Eleventh Circuit's recently approved rule changes go into effect today. You can check out the new rules here. The clerk's memorandum at the front of that document includes a summary of the changes. They include a new citation requirement that citations to U.S. Supreme Court decisions include both the United States Reports and the Supreme Court Reporter. Also, the new rules permit oral arguments to be ordered for less than all parties in a case.

Eleventh Circuit Help
I must confess that I'm not just bad, I'm woefully bad, at using the Eleventh Circuit's web site to find that court's older cases. You may notice that the preceding post links to an Eleventh Circuit decision hosted by Emory Law School's Eleventh Circuit page. That's because I couldn't find the opinion on the Eleventh Circuit's site. This was not the first time I've had such luck (although last time I later found the case where I was sure I'd already looked). If someone can find the case on the Eleventh Circuit's site, please let me know. Maybe I'll be able to figure out what I'm doing wrong.

By the way, I'm not trying to be implicitly critical of the Eleventh Circuit's site. It's an excellent site, especially with regard to checking recently published cases. I wish all the circuit courts' sites were nearly as convenient. They're not, though.

Second District: Due Process, Arbitration, and Not So Fast, Eleventh Circuit
We have here a marvelous and fascinating opinion from the Second District. The heart of the opinion presents a due process retroactivity analysis that is simply first rate. Judge Canady went to great lengths to articulate the analysis regarding when interests vest as rights under Florida law for purposes of cutting off the Legislature's ability to alter those interests retroactively. I suspect that this analysis will be used rather soon with regard to some recently passed Florida statutes that, on their face, affect rights arising from events that pre-dated the legislation. And I'm downright giddy about it.

But wait. There's more. Read the Second District's decision a little closer, and you'll see there's something very interesting just below the surface. Actually, it's just below the footnote separator line. The case's overall context was an arbitration dispute, with one side arguing that the parties' arbitration agreement was unenforceable because it was contained in a void agreement, and the other side arguing that the validity of the overall agreement should be addressed by the arbitrator because the arbitration provision was separable and could independently survive. Without much discussion, the Second District held that under Florida law the validity of the overall agreement governed the enforceability of the arbitration provision. In a footnote, though, the court recognized that the Eleventh Circuit reached a different conclusion in this case. The Eleventh Circuit held that, under both the Federal Arbitration Act and Florida law, where the parties actually agreed to arbitrate a dispute, the validity of an overall agreement containing the written arbitration agreement should be determined by the arbitrator. In a footnote, the Eleventh Circuit cited a series of Florida district court cases that appeared to reach a contrary conclusion, but the Eleventh Circuit found them unpersuasive for various reasons.

So each court has rejected the other's interpretation of Florida law. In footnotes, too.

(If you're wondering -- no, the federal circuit courts need not accept the interpretation of state law made by any state court other than the state's highest court, and state courts need not accept any interpretation of federal law other than that made by the U.S. Supreme Court.)

Also, each side may have rejected the other's interpretation of federal law -- the Second District decision contains no discussion of whether the Federal Arbitration Act also applied to the agreement at issue, or whether the Second District views there to be a conflict regarding the federal act's application.

If your practice or your business concerns arbitration agreements, be aware of this situation.

As a final observation, I'll note that neither the Second District nor the Eleventh Circuit actually discussed the specific applicability of the Florida law at issue -- a law that prevents unlicensed Florida contractors from entering into contracts -- to the arbitration agreement itself.

Discussions On Abstract Appeal Are (At Best) Academic and Are Not Legal Advice. Consult an Attorney in Your Jurisdiction if You Require Legal Advice.

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