Abstract Appeal -- by Matt Conigliaro

Friday, May 28, 2004

Friday Florida Law Trivia Answer

Well, a virus knocked out our computer system at work, so I've returned home early to post the answer to this week's question.

And the answer is... $40, as required by this statute. Notably, a defendant found to be indigent may not be refused counsel for failure to pay the application fee.

...posted by ⊥ 5:13 PM ⊥ #

Fifth District: Seeking An Educated Citizenry

A little knowledge can be dangerous, so the saying goes. Judges can certainly attest to this, and sometimes they do. Take today, for instance, when the Fifth District released its decision in this case. The case involved a suit by a man who claimed that two municipally-owned Florida golf courses violated his constitutional rights by making him use a golf cart. The man preferred to walk. Exercise, you know.

The trial court dismissed the case as lacking any constitutional basis. The Fifth District affirmed, and ended its opinion with the following remark:

We conclude with the observation that our founding fathers must be wondering if anyone today even reads the Constitution, much less understands it.

It's one thing to know that the Constitution protects our rights to due process. It's another thing altogether to understand what centuries of case law have determined that protection to mean.

...posted by ⊥ 11:21 AM ⊥ #

Friday Florida Law Trivia!

It's Friday again, but Hunter's off on some adventure, and as a result this week's trivial duties have fallen to me. So, dipping into my cache of Florida law trivialities...

In Florida, how much does it cost an indigent person accused of a crime to request representation by the public defender?

I will post the answer around 4:45 pm EDT today.

...posted by ⊥ 10:27 AM ⊥ #

Curbing the Diet?

Nearly everyone I know has tried some form of the Atkins diet in the last few years. It's popular, to say the least, and that's something a Delray Beach man is trying to halt. Today's Palm Beach Post has this story on the man who yesterday filed a lawsuit against Dr. Atkins's estate and the company that markets the diet, claiming the high profile diet plan negligently fails to warn the public about the dangers of eating too many cholesterol-laden foods.

The article points out that the suit is being funded by a Washington-based vegan and animal rights group. Hmmm.

...posted by ⊥ 7:47 AM ⊥ #

Sam Gerard Would Be Proud

I didn't do it, I didn't do it, the man convicted of first-degree murder kept shouting in court before his sentencing. So the judge taped his mouth shut. With duct tape. The jury then returned to the courtroom for closing arguments in the penalty phase. You can read about it all in this story from the AP.

By the way, the jury recommended death.

...posted by ⊥ 7:31 AM ⊥ #

Supreme Court: Retroactivity and Finality

Yesterday, in this case, the Florida Supreme Court addressed the superficially simple question of whether that court's disagreement with an earlier district court decision on the meaning of a criminal statute amounts to a change in the law as it existed at the time of the earlier, now-rejected interpretation and before. A majority said no, that in the context of that case, overruling a prior district court decision constituted only a change in the law going forward, rather than a clarification of the law that, in effect, retroactively changed the law as it previously existed.

The court's decision was complemented by a three-justice concurrence authored by Justice Wells, who partook in a massive debate with dissenters Chief Justice Anstead and Justice Pariente over the retroactivity question and, interestingly enough, the concept of finality in Florida appellate jurisprudence.

The bottom line is that the 81 pages that contain the various opinions in this case offer some fascinating views of due process and finality under Florida law. I'm going to save an extended treatment of what was said for another day, but I encourage anyone with interest in these subjects to grab a snack, or maybe a meal, and sit down with this case for a bit. It will be worth your time.

...posted by ⊥ 7:02 AM ⊥ #

Thursday, May 27, 2004

Schiavo News

Judge Greer held a hearing yesterday regarding the Schindlers' visitation concerns. You may recall that, for the last two months, Michael Schiavo has permitted them to visit Terri only if they are supervised, such as by a security officer paid for by them. The Schindlers have refused to agree to that condition and asked Judge Greer to overrule it.

According to this story in today's St. Pete Times, at the hearing, Judge Greer ruled that the Schindlers may have a 90-minute visit that "need not be supervised," and he will soon issue a full written order on the matter.

The story also indicates that the parties are now bickering over whether Judge Greer's temporary visitation order requires the 90-minute visit to be unsupervised or whether Michael could have someone else present to observe if he chooses.

...posted by ⊥ 7:57 AM ⊥ #

Second District: Family Law Findings

In this case, the Second District reminds family law lawyers and judges that a trial court in a family law matter should announce its findings before inviting the parties to submit proposed final judgments. Otherwise, the court may appear not to have made its own independent decisions on the material facts.

...posted by ⊥ 7:49 AM ⊥ #

Third District: Benlate Appeal

Yesterday, the Third District released this latest appellate decision in the ongoing Benlate saga. The court reversed large verdicts entered against DuPont, and the opinion is sure to receive a great deal of attention from the defense bar and the plaintiffs' bar. Look for it soon as "Case of the Month" at a bar meeting near you.

In short, the court addressed issues concerning Florida's civil RICO statute, FIFRA preemption, and adverse inference instructions. The court held that a civil RICO plaintiff must show damages directly caused by the underlying predicate acts, that FIFRA applied to preempt claims brought under Florida law for negligent labeling in another country, and that the trial court should not have given an adverse inference jury instruction where the plaintiffs failed to show an inability to proceed without evidence destroyed by the defendant.

...posted by ⊥ 6:11 AM ⊥ #

Wednesday, May 26, 2004

We've Got Spam Laws

Yesterday, Governor Bush signed into law a bill that will become known as the "Florida Electronic Mail Communications Act." The law prohibits, in essence, sending unsolicited commercial email from a computer in Florida or to the email account of a Florida resident. The law also prohibits using a third party's domain name without permission and sending email with false routing information or "false or misleading information in the subject line."

The law directly provides remedies to the state's Attorney General and internet service providers, and the law indirectly provides remedies to the public through Florida's unfair trade practices law.

Legislation like this new Florida law raises a specter of potential constitutional issues: interstate commerce, due process, and freedom of speech come quickly to mind as likely bases for constitutional challenges. Expect some very interesting litigation in this area.

...posted by ⊥ 7:26 AM ⊥ #

Elections Suit

The Tallahassee Democrat reports here that a federal judge has dismissed a suit by U.S. Representative Robert Wexler that sought to require Florida's electronic voting machines to utilize paper receipts. The suit was apparently dismissed on abstention grounds, the federal court not wanting to become embroiled in state elections procedures.

...posted by ⊥ 7:22 AM ⊥ #

Execution Delayed

John Blackwelder's execution, scheduled for yesterday evening, was delayed after another inmate wrote a letter claiming someone else confessed to the murder Blackwelder was found to have committed. The AP has the story here. Interestingly, the other inmate works in a prison law library and apparently knows the legal lingo here. His letter said, "I understand what I am telling you is double hearsay and it was not the person ... who revealed or confessed to the crime.... However, in light of the circumstances and the immediacy of the situation ... I felt an obligation to notify the attorneys involved."

...posted by ⊥ 5:48 AM ⊥ #

Tuesday, May 25, 2004

If At First You Don't Succeed

Overheard recently somewhere near Escambia County, Florida:

Prisoner A: I told Petey he needed to work on limiting his points. He just doesn't listen.

Prisoner B: Yeah, but I always loved that number 37. Always loved it. Can't believe they got that far. But I always loved it.

...posted by ⊥ 6:36 AM ⊥ #

Questions, questions

If you like common law damages issues, then you will love this case pending before the Eleventh Circuit. The case involves MCI's fiber-optic telecommunications cable, which the defendant severed. The network was designed, though, to compensate for a break in the cable by rerouting signals along another path. The severed portion of the cable was valued by the defense at about $5000, and apparently MCI spent only $23,000 to repair it -- the whole process taking just a few days. MCI had no interruption in service and lost no profits, but MCI claimed nearly $900,000 in "loss of use" damages, valued at the cost of renting an equivalent line from another telecommunications company -- something MCI did not do.

Think about it. MCI built a network that could withstand a major cable being severed, but MCI argued that its well-built network should not inure to the defendant, who should have to pay the fair rental value of the line it rendered temporarily defunct. Very interesting.

Well, Florida law applies in the case, and the Eleventh Circuit was unsure how Florida would resolve the loss of use issue, so the federal court certified the following two questions to the Supreme Court of Florida:

IS A TELECOMMUNICATIONS SERVICES CARRIER ENTITLED TO DAMAGES FOR THE LOSS OF USE OF A FIBER-OPTIC CABLE DAMAGED BY A DEFENDANT WHEN THE CARRIER INTENDED TO HAVE THE FULL CAPACITY OF THE DAMAGED CABLE AVAILABLE FOR ITS USE SHOULD THE NEED HAVE ARISEN, BUT THE CARRIER WAS ABLE TO ACCOMMODATE WITHIN ITS OWN NETWORK THE TELECOMMUNICATIONS TRAFFIC CARRIED BY THE DAMAGED CABLE AND THE CARRIER PRESENTED NO EVIDENCE THAT IT SUFFERED LOSS OF REVENUE OR OTHER DAMAGES DURING THE TIME THE CABLE WAS UNAVAILABLE?

IF THE TELECOMMUNICATIONS CARRIER IS ENTITLED TO LOSS OF USE DAMAGES, DOES THE PRE-INJURY VALUE OF THE DAMAGED CABLE ESTABLISH A LIMIT TO THOSE DAMAGES, OR SHOULD THE FAIR MARKET RENTAL VALUE OF AN EQUIVALENT REPLACEMENT CABLE FOR THE TIME REASONABLY NECESSARY TO MAKE REPAIRS SERVE AS THE MEASURE OF LOSS OF USE DAMAGES?

This will be a great case to watch.

...posted by ⊥ 6:16 AM ⊥ #

Eleventh Circuit: Foster Care 1983 Suit

Yesterday, in this case, the Eleventh Circuit held that qualified immunity protected the conduct of three Department of Children and Families workers involved with a child who was abused and ultimately murdered in foster care. The decision includes a good description of the public policies underlying qualified immunity and how the doctrine's high standards apply in the context of foster care.

...posted by ⊥ 6:05 AM ⊥ #

Monday, May 24, 2004

Amended Rules

Last week, in this very long order (long because of its attachment's length), the Florida Supreme Court amended the Rules Regulating the Florida Bar. The amendments include good news for construction lawyers -- you now have the ability to become board certified in construction law. Among other things, the amendments also extend the rules regarding excessive fees to excessive costs, lessen some advertising proscriptions, and modify the rules regarding the unauthorized practice of law.

Board certified lawyers may wish to take note of the amendments regarding certifications. The Supreme Court has now permitted lawyers to make limited references to certifications by other state bars and other organizations, and in doing so the court has changed the rule regarding references to Florida certifications: board certified attorneys must reference The Florida Bar as the certifying organization when referring to a Florida bar certification.

...posted by ⊥ 7:17 AM ⊥ #

Fifth District: UM Coverage

If you are interested in uninsured motorist coverage stacking issues -- specifically, when an insured's selection to stack or not to stack has been clearly made -- check out this opinion from the Fifth District.

...posted by ⊥ 7:15 AM ⊥ #

Second DIstrict: Vindictive Sentences

A vindictive sentencing argument is not cognizable in a Rule 3.800(a) proceeding, as explained by this decision from the Second District.

...posted by ⊥ 7:10 AM ⊥ #

Fifth District: Prohibition in Family Law Case

In this case, the Fifth District rejected a petition for writ of prohibition on grounds the petition was "premature." The case was a family law case and involved a pending post-judgment hearing regarding the sale of a marital home.

Interestingly, the decision is likely to be miscontrued. The court spoke ("We cannot speculate as to the future action of the trial court.") as if a writ of prohibition is not appropriate where the trial court has not yet acted. But that's exactly what the writ of prohibition is for -- to prevent, in advance, a lower tribunal from exercising jurisdiction that it does not possess. What seems to have made prohibition inappropriate in this case was that the family law rules contemplate a procedure for post-judgment transfers of property and provide a method of review from such orders.

...posted by ⊥ 6:58 AM ⊥ #

Back In Blog

'Twas a weekend away from the blog -- with the firm retreat, some unexpected research projects, and some around the home chores. I now have a bit of catching up to do.

...posted by ⊥ 6:20 AM ⊥ #

Friday, May 21, 2004

Nontrivial...

Well, Hunter and I managed not to get a trivia question posted today. Sorry about that. We're not only working, we're also at the Carlton Fields biannual retreat, which this year is (coincidentally) being held at the beautiful Vinoy in downtown St. Pete. We'll make it up to the trivia lovers out there next week by making next week's question a doozy.

...posted by ⊥ 11:57 AM ⊥ #

New Laws

The AP has this brief summary of a few bills Governor Bush recently signed into law.

...posted by ⊥ 7:17 AM ⊥ #

Fourth District: Poison Appeal

Is it possible to commit the crime of attempted poisoning? Not according to this decision from the Fourth District.

...posted by ⊥ 7:11 AM ⊥ #

Third District: Wrongfully Rejected Bids

If your company makes the low bid on a public project in Florida and you are arbitrarily denied the contract, can you sue to recover the profits you would have made on the job you lost? The answer -- which may seem counterintuitive, until you consider the purpose of bidding statutes -- is no. Read about it in this case of first impression from the Third District.

...posted by ⊥ 6:56 AM ⊥ #

Fourth District: Deadly Bats?

Are you one of those people who keeps a small baseball bat in your car, just in case waiting at the light one night brings something more than a long wait at the light? If so, you might be interested in this case, where the Fourth District reversed a juvenile's conviction for carrying a concealed weapon between the driver's seat and door in his car -- a small baseball bat.

...posted by ⊥ 6:50 AM ⊥ #

Fourth District: Administrative Appeals

Just an appellate reminder here from the Fourth District: that an organization has standing to appear in an adminstrative proceeding to argue against a particular result does not mean the organization has standing to appeal if the undesired result is reached.

...posted by ⊥ 6:46 AM ⊥ #

Fourth District: Manifest Weight

When a trial court grants a new trial based on a determination that the jury's verdict was contrary to the manifest weight of the evidence, need the retrial be on the whole case? Nope. In fact, it may be error to grant a retrial on every issue. Check out this decision from the Fourth District.

...posted by ⊥ 6:43 AM ⊥ #

Fourth District: Sanctioning Dismissals

Trying to get a complaint dismissed with prejudice for noncompliance with a discovery order? It's not easy, as this decision from the Fourth District shows.

...posted by ⊥ 6:40 AM ⊥ #

Little's Success

Apparently his name really is Little Willie, and he's headed up on conflict.

...posted by ⊥ 6:34 AM ⊥ #

Thursday, May 20, 2004

Schiavo Thoughts

Someone recently asked me if I had any insight into how someone came up with a statement that 19 judges had ruled in favor of Michael Schiavo's request to withdraw Terri's feeding tube. I thought I'd share the pertinent portion of my response. It's a bit long and rather informal:

I would not make any sort of statement regarding how many judges have ruled in someone's favor in this case. There have been so many cases, so many issues, and the question of "what does lack of jurisdiction mean?" is so complex, that it is very difficult to say anything meaningful here in a concise way.

I'll try to show you why:

Judge Greer ruled in Michael's favor in the original decision on whether Terri would choose to keep or remove her feeding tube under her present circumstances. That ruling was upheld by a three-judge panel of the Second District (Judges Altenbernd, Parker, and Blue), and the Florida Supreme Court denied review (Justices Harding, Lewis, Pariente, Anstead, and Quince) for lack of jurisdiction. The decision that the court lacks jurisdiction to take the case is not one on the merits of the case, so I wouldn't count these five if you're talking about the merits of the case.

Next, Judge Quesada ruled in favor of the Schindlers when they sought to enjoin the removal of Terri's feeding tube, but the Second District (Judges Altenbernd, Parker, and Blue) effectively reversed that decision by ordering the case transferred to the guardianship proceeding before Judge Greer. I'm not sure what category the Second District's decision goes in, but Judge Quesada did not rule in Michael's favor.

Separately, Judge Greer ruled against the Schindlers when they sought relief from the earlier judgment. That decision was affirmed in part and reversed in part by the Second District (Judges Altenbernd, Parker, and Blue) in the appellate case that ordered the Judge Quesada case transferred, so I'm still not sure what category this decision goes in.

Next, Judge Greer ruled against the Schindlers on their motion for relief from judgment. That decision was reversed on appeal by the Second District (Judges Altenbernd, Parker, and Blue).

Next, Judge Greer held a trial and ruled against the Schindlers on the merits of their motion for relief from judgment. The Second District (Judges Altenbernd, Fulmer, and Stringer -- FYI: by now, Judge Parker had passed away and Judge Blue had retired to private practice) affirmed that decision, and the Florida Supreme Court (Justices Anstead, Wells, Lewis, Pariente, Quince, Cantero, and Bell) again denied review based on a lack of jurisdiction.

The Schindlers also filed two federal cases, one before Judge Lazzara and one before Judge Merryday. Both cases were dismissed on procedural grounds. As with the Florida Supreme Court's decisions, I do not consider those to be rulings in favor of Michael Schiavo on the merits of the feeding tube issue.

After Terri's law was passed, Michael's constitutional challenge landed before Judge Baird. He recently ruled that the law is unconstitutional.

Governor Bush filed an appeal during the constitutional challenge regarding some procedural issues, and he lost before the Second District (Judges Davis, Fulmer, and Wallace), but I don't see how that could count here. It had nothing to do with the merits of the constitutional challenge. Governor Bush also filed an original proceeding in the Second District regarding some discovery issues in the constitutional case, and he won (Judges Wallace, Fulmer, and Davis) but that didn't have anything to do with the merits of anything either. Governor Bush also filed an original proceeding in the Second District to disqualify Judge Baird, and the Second District rejected that petition (Judges Wallace, Fulmer, and Davis). That was arguably a win for Michael but it had nothing to do with the merits of the feeding tube issues or the constitutional challenge.

Separately, Terri's parents sought to intervene in the constitutional challenge. That motion was denied by Judge Baird, but on appeal the Second District (Judges Davis, Fulmer, and Wallace) reversed that order on the basis that specific findings needed to be made. That was sort of a win for Terri's parents, but a weak one since Judge Baird could reach the same result with more specific findings (as he later did), and in any event this had nothing to do with the merits of the feeding tube issue.

By my count, 6 judges ruled in Michael Schiavo's favor on the merits of the "what would Terri do?" issue -- Judges Greer, Altenbernd, Parker, Blue, Fulmer, and Stringer. One judge has ruled in Michael's favor on the constitutional challenge -- Judge Baird. Let me put this carefully: That's 7 judges who have directly determined, or upheld the merits of the decision, that Terri Schiavo would not wish to continue receiving her feeding tube under the present circumstances. Eight Florida Supreme Court justices ruled against getting involved in the case because the earlier decisions did not create a conflict in Florida's case law, and two federal judges decided they could not get involved in the case because the federal district courts have no ability to overrule state court decisions. Judges Wallace and Davis were involved in decisions that went for and against Michael, but those decisions had nothing to do with the merits of the feeding tube decision or the constitutional challenge.

So, we have 19 judges who at some point made rulings Michael Schiavo supported, but that's a very empty statement ...

...posted by ⊥ 7:08 PM ⊥ #

More Mess

Perhaps I'll just refer to the constitutional amendment battle between Florida's doctors and plaintiffs' lawyers as "the mess." It's a nice shorthand. Rather polite, too -- all things considered. At any rate, right on cue, Howard Troxler of the St. Pete Times has some interesting observations on the situation here.

...posted by ⊥ 8:54 AM ⊥ #

Wednesday, May 19, 2004

Constitutional Mess

The Miami Herald has this excellent story today on the sordid battle between Florida's doctors and its plaintiffs' lawyers. Each group is advancing one or more constitutional amendments designed to cripple the other side.

As we head closer to election time, expect to see a lot of discussion about these proposals.

...posted by ⊥ 7:18 AM ⊥ #

Confirmed

Today's Sun-Sentinel has this story on yesterday's Senate confirmation of Marcia Cook as the newest judge to be appointed to the United States District Court for the Southern District of Florida. Judge Cook is the first black woman to sit on Florida's federal bench.

...posted by ⊥ 7:06 AM ⊥ #

Supreme Sighting

Justice Clarence Thomas was in South Florida yesterday, helping honor scholarship winners in a presentation at the Miami Dolphins spring training facility, according to this story from the AP. From the Justice's quotes, it seems he appreciates both mental and physical competitions.

...posted by ⊥ 6:48 AM ⊥ #

Eleventh Circuit: Open Primaries

My hat's off to the Eleventh Circuit for this wonderfully concise opinion in a case challenging Georgia's open primary system. The decision was written by Judge Susan Bucklew of Florida's Middle District, who sat by designation, and it tersely rejected the various constitutional and statutory theories advanced by a group of individual voters.

Perhaps the most interesting portion of the decision involved the court's conclusion that only a party, such as the Georgia Democratic Party, has standing to bring a freedom of association challenge to a law governing who may vote to select that party's electoral candidates. Indeed, the court suggested, to allow a suit by individuals to determine who should or should not be permitted to vote in a party's primary would itself be an unconstitutional infringement of the party's associational rights.

...posted by ⊥ 5:36 AM ⊥ #

Monday, May 17, 2004

Word Sense

I finished that last post with a word that I just made up: aforelinked. I then checked the web's near-omniscient source for all things word-related and it seems I was no less than the two hundred and sixty-second person to use that word. (Look here.)

...posted by ⊥ 6:28 PM ⊥ #

Gay Marriage

The AP also has this story on gay couples who today sought marriage licenses from the Hillsborough County clerk's office. Turning the couples down, the clerk's office employees followed Florida law, which, by statute, does not permit civil marriages between persons of the same sex. You can read that law here. You might also wish to read this prior Abstract Appeal post on a pending suit to declare the aforelinked statute unconstitutional.

...posted by ⊥ 6:20 PM ⊥ #

More Schiavo News

The AP is reporting here that Michael Schiavo is continuing his policy of permitting the Schindlers to visit Terri only if they hire a guard to oversee their visits. According to the story, Michael believes the circumstances surrounding the marks found in Terri's arms back in March are suspicious enough, and the Schindlers prior conduct in videotaping Terri in violation of a court order was serious enough, to justify continuing the policy.

The Schindlers have filed a motion challenging Michael's visitation policies. That motion is scheduled to be heard by Judge Greer on May 26.

...posted by ⊥ 6:07 PM ⊥ #

Schiavo News

While I was busying myself this weekend with non-blog activities, the Terri Schiavo saga took a couple more steps forward. There were two developments.

First, the Clearwater Police Department wrapped up its investigation of the needle-like marks found in March on Terri's arms, concluding that the marks were of an unknown origin and that the evidence did not suggest they were the result of a crime.

Second, the Second District issued an order directing Michael Schiavo and Governor Bush to explain why the appeal in the constitutional challenge should not be immediately certified to the Florida Supreme Court.

Each development is interesting. You can read about them in this story in the St. Pete Times and this story from the Tampa Tribune. You can also read the Clearwater Police Department's press release here.

As for the investigation, you may recall that, since the marks were discovered, Michael Schiavo has not allowed the Schindlers to visit Terri without a guard present and paid for by them, and that the visitation disagreement has resulted in a motion by the Schindlers in the guardianship case to permit unsupervised visitation. Judge Greer is scheduled to hear that motion later this month. It seems much if not all of the motion could be mooted if Michael would begin allowing visitation now, but this story suggests that he has not yet changed his position against unsupervised visitation. I do not know Michael's reasons for continuing to demand only supervised visitation.

Regarding the Second District's order, this is an unusual step, generally speaking, but not one that was totally unforeseeable in this case. Florida's district courts of appeal can certify appeals of trial court decisions for immediate resolution by the Florida Supreme Court where a district court believes that the issues in the case are either of great public importance or have a great effect on the proper administration of justice throughout the state. The Second District has not done that, though -- at least not yet. Instead, the court has simply asked the parties to offer, within 10 days, any reasons why the case should not be certified. Whether the court will actually certify the case still remains to be seen.

Also, if the Second District certifies the case, that does not mean that the Florida Supreme Court must immediately hear the case. The Florida Supreme Court has complete discretion to determine whether hear a certified case, and that court has previously turned back efforts by the district courts to certify cases for immediate resolution.

So, what's changed? Nothing yet. We will wait until the parties' responses are submitted to the Second District and then see if a certification results. I will not be surprised with the result no matter what it is. There is no argument that the Schiavo constitutional case has a great effect on the proper administration of justice throughout the state. Thus, the issue boils down to whether the case is seen by both the district court and the supreme court as one involving "great public importance." That characteristic, like beauty, is in the eye of the beholder.

...posted by ⊥ 7:46 AM ⊥ #

Fifth District: Nursing Home Litigation

Fans of nursing home litigation may recall that the Fifth District and the Fourth District disagree over whether, under the pre-2001 versions of Chapter 400, a personal representative could bring a claim under that chapter for residents' rights violations not causing the decedent's death. (The conflict was previously discussed in this Abstract Appeal post.) The Fifth District holds that no such limitation existed. Now, if prior to that decision being released a trial court followed the Fourth District's case law and did not permit a non-fatal residents' rights claim to go to the jury, is that necessarily reversible error? No, according to this decision, where the jury found no liability under the plaintiff's negligence claim, and the negligence and residents' rights claims were "virtually identical."

...posted by ⊥ 7:30 AM ⊥ #

Fifth District: Unsanctioned Sanctions

If you find yourself regularly involved in medical malpractice cases, you may wish to check out this decision from the Fifth District. The court issued a writ of certiorari quashing an order denying a motion to strike the defendants' pleadings. The defendants had supposedly failed to comply with various discovery and pre-suit requirements applicable to medical malpractice actions, and the Fifth District held that, in such cases, orders on motions for sanctions should indicate the factual basis for the trial court's decision, to allow appellate review.

...posted by ⊥ 7:19 AM ⊥ #

Questions, questions

On Friday, in this case concerning a television station's efforts to obtain school bus videotapes and bus-related disclipinary records, the Fifth District held that the requested records were exempt from public records disclosure but certified the following to the Florida Supreme Court as a question of great public importance:

Do the provisions of section 238.093(3)(d) create an exemption from the Public Records Law for the entire contents of a student's record within which there is a student's personally identifiable information or does it create an exemption only for such personally identifiable information within that record so that upon a proper request, the custodian must redact the personally identifiable information and produce the balance of the record for inspection under section 119.08(2)(a)?

The district court's opinion consisted entirely of adopted portions of the trial judge's order -- a nice tip to the legal analysis of Judge Donna McIntosh.

...posted by ⊥ 7:05 AM ⊥ #

Eleventh Circuit: Jury Instructions

Just a reminder, here, from the Eleventh Circuit: the circuit's Pattern Jury Instructions are not always correct.

...posted by ⊥ 6:32 AM ⊥ #

Friday, May 14, 2004

Friday Florida Law Answer

The county directly south of Pinellas County is Hillsborough County, not Manatee County, as most people think. According to this statute defining county boundaries, Hillsborough County includes a sliver of Tampa Bay directly south of Pinellas County. That sliver extends westerly to the western boundary of the State of Florida. For that reason, a car driving south over the Skyway Bridge crosses three counties while on the bridge: Pinellas County, Hillsborough County, and then Manatee County.

...posted by ⊥ 4:45 PM ⊥ #

Friday Florida Law Trivia!

What county lies directly to the south of Pinellas County?

The answer will be posted about 4:45 EDT today.

...posted by ⊥ 8:03 AM ⊥ #

Fourth District: In Can't Be On?

Suppose a homeowners association's rules prohibit signs "on any lot" and allow parking in driveways only by vehicles without signs "thereon." Now suppose a homeowner intending to skirt the rules places signs in her car's windows and parks the car in her driveway. Has she broken the rules?

Yesterday, in this case, the Fourth District addressed just such a situation and held that neither rule had been violated: "on any lot" does not mean in a car, and "thereon" does not mean "therein."

Judge Klein dissented on the latter point, explaining that "thereon" and "therein" were not mutually exclusive terms and that a sign in an automobile window can reasonably be considered to be a sign "on" the vehicle.

Something tells me homeowners associations may want to revisit their bylaws. As President of our new condo association, I'll be doing the same.

...posted by ⊥ 7:23 AM ⊥ #

Supreme Court: Reprimand

The next time you hear someone impugn a judge because he or she will not speak to the media about a case, tell whomever that, in Florida, that's not the way the judiciary operates. Comments on a case can lead to trouble, as seen by this reprimand issued yesterday by the Florida Supreme Court.

...posted by ⊥ 7:11 AM ⊥ #

Constitutional Cafeteria

Yesterday, the Florida Supreme Court approved the ballot title and summary and the single-subject nature of this proposed constitutional amendment, which if approved would permit Miami-Dade and Broward counties to hold referenda on whether to allow slot machines in horse racing, dog racing, and jai-alai facilities. You can read the court's opinion here.

...posted by ⊥ 6:55 AM ⊥ #

Eleventh Circuit: Torture

If you find yourself needing to avoid deportation, and you wish to assert that under the Convention Against Torture you should not be returned to another country because there you will be tortured, you may wish to check out this decision from the Eleventh Circuit. The court explained the role governmental acquiescence plays in the torture analysis.

...posted by ⊥ 6:41 AM ⊥ #

Fourth District: Search and Seizure Conflict

When a police officer is running a check on you using your driver's license, which you voluntarily gave up, are you effectively seized, such that when the officer asks you if you consent to a search, any consent is invalid and the fruits of the search must be suppressed? The districts are in conflict over the answer, as certified by this decision Wednesday from the Fourth District.

Concurring specially, Judge Klein opined that the theory finding consent valid under these circumstances is a "charade," and he offered these additional thoughts:

Our sister court, which upheld a search under these circumstances, did so under the assumption that a person can "withdraw his consent at any time by, for example, asking that his license be immediately returned." Golphin v. State, 838 So. 2d 705, 707 (Fla. 5th DCA 2003). This, of course, presupposes that the person knows the law of search and seizure. I, for one, despite my law school education, had no idea there was such a thing as a consensual encounter until I became a judge. Because police officers are, in our society, charged with maintaining order and enforcing the law, it would never have occurred to me that I could insist on the return of my license before the officer was finished with it. Nor would it occur to any other person unversed in search and seizure law.

Frankly, I know the law on this, and I have no plans of ever asking any officer to give me my license back.

...posted by ⊥ 6:26 AM ⊥ #

Questions, questions

The City of Hollywood has an ordinance that allows police to impound vehicles believed to be used to facilitate prostitution. In this October 2003 decision, the Fourth District held that ordinance invalid based on a state statute that preempts the field of criminal forfeitures or at least precludes contrary municipal regulations. On Wednesday, in this order denying rehearing, the court certified the following to the Supreme Court of Florida as a question of great public importance:

Does the Florida Contraband Forfeiture Act preempt local governments from adopting ordinances imposing forfeiture of personal property for misdemeanor offenses?

...posted by ⊥ 6:11 AM ⊥ #

Eleventh Circuit: En Banc on Commerce Clause

In November 2002, the Eleventh Circuit decided this criminal case, which held that Congress exceeded its authority under the Commerce Clause to the extent 18 U.S.C. § 247 applied to the defendant's actions in burning five rural Georgia churches. Those actions, the court held, did not substantially affect interstate commerce. Judge Cynthia Hall, of the Ninth Circuit, dissented. Yesterday, in this order, the Eleventh Circuit vacated the panel's decision and decided to rehear the case en banc.

...posted by ⊥ 5:46 AM ⊥ #

Thursday, May 13, 2004

Second District: Fibromyalgia is Pure Opinion

Trial lawyers, especially personal injury lawyers, will want to take note of this decision released yesterday by the Second District. Addressing a doctor's expert testimony that a plaintiff developed fibromyalgia as a result of trauma from an automobile accident, the district court held that Frye v. United States was inapplicable to that testimony because it was based on pure opinion, not scientific principles.

...posted by ⊥ 7:55 AM ⊥ #

Second District: Child Support Conflict

Is the husband of a mother at the time she gives birth an indispensable party to an action to recover support for the child from a third person who is allegedly the child's biological father? In this decision released yesterday, which involved collection actions by the Department of Revenue, the Second District said yes and approved the dismissal of the Department's cases.

The court also went further. It concluded not only that the husband is an indispensable party who must be joined, but that child support should first be sought from the husband, since the husband of a woman giving birth is legally presumed to be the child's father, and this presumption is difficult, and in some instances no longer possible, to overcome.

This case evokes some significant policy concerns on all sides of the child support equation. Surely the Department of Revenue is well intended when it seeks support from the person who may actually be a child's biological father. Florida case law, however, has long supported the interests of a child in not being declared, or effectively declared, illegitimate, and that is exactly the implication, if not the effect, of the state obtaining child support from a man other than the mother's husband at the time of the child's birth.

Most likely, this area could benefit from legislative attention. In any event, this case will surely receive attention from the Florida Supreme Court: the Second District's decision on the indispensability question squarely conflicts with a prior decision from the First District.

...posted by ⊥ 7:17 AM ⊥ #

Second District: Gambling

If you would like a small sample of the detailed regulations that apply to slot machines in Florida, check out this decision from the Second District.

...posted by ⊥ 7:15 AM ⊥ #

Second District: NICA Conflict

This fall, if the Florida Supreme Court would like to take a break from the procedural morass of the tobacco class action litigation, the court can turn its attention to the Florida Birth-Related Neurological Injury Compensation Act (NICA). In this clarified opinion issued yesterday by the Second District, which did not change the original opinion's result, the district court held that adminstrative proceedings under NICA may not concern whether a health care provider provided NICA's statutorily required notice or whether any such notice triggered the tort immunities offered by that act. The court certified that its decision conflicts with decisions by the Third, Fourth, and Fifth Districts.

...posted by ⊥ 6:53 AM ⊥ #

First District: Service Time

This decision serves as a reminder from the First District that, as under the federal procedural rules, the 120-day period for service can be extended by a trial court even in the absence of good cause.

...posted by ⊥ 6:45 AM ⊥ #

First District: Contracts and Injunctions

In this decision, the First District held that Leon County could not be liable for breach of a development agreement because a court-ordered injunction prevented the County from performing its contractual obligations. Though the case involved land use, the basic principles governing the court's decision were not limited to that context.

...posted by ⊥ 6:30 AM ⊥ #

Wednesday, May 12, 2004

Tobacco Appeal

Oh my. The Florida Supreme Court has voted 4-2 to review the Third District's decision in the Engle tobacco class action. Last year, the Third District reversed the judgment in the case, a $145 billion judgment that exceeded, by many times, any judgment ever entered by any court in the world. The Third District also determined that the case could not proceed as a class action and ordered the class decertified.

You can read the Third District's decision here.

You can read the Supreme Court's order, which sets an ambitious briefing schedule and an October oral argument date, here. Also, Justice Cantero recused himself, based, I believe, on his tobacco defense work when he was in private practice.

...posted by ⊥ 1:54 PM ⊥ #

Schiavo News

Today's St. Pete Times has this story on the Schindlers' latest motion in the guardianship case. The motion seeks to compel Michael Schiavo to permit the Schindlers visitation with Terri. Michael has agreed to visitation, but since the incident in March where needle-type marks were found on Terri's arms, Michael has required that Terri's parents be accompanied by a security officer paid for by them.

The Terri's Fight site has posted a copy of the Schindlers' motion. It's available here. You will notice it is labeled an "emergency" motion. You may also notice that the accompanying Terri's Fight press release indicates that Judge Greer has already determined he will not treat the motion as an emergency motion.

That seems appropriate. What constitutes an emergency is generally a judgment call made on a case-by-case basis, but my experience has been that most courts will not consider something to be an emergency unless some substantial harm will occur if action on the matter is delayed. Florida appellate attorneys are probably familiar with the Eleventh Circuit's published standard for what constitutes an "emergency":

Except in capital cases in which execution has been scheduled, a motion will be treated as an emergency motion only when both of the following conditions are present:
1. The motion will be moot unless a ruling is obtained within seven calendar days; and
2. If the order sought to be reviewed is a district court order or action, the motion is being filed within seven calendar days of the filing of the district court order or action sought to be reviewed.

In other words, circumstances must be such that a week's delay will moot the issue, and the moving party must not have merely waited to file the motion until the week before mootness is about to occur.

Regarding the Schindlers, who wish to visit Terri without complying with Michael's demand for paid security, Judge Greer has apparently determined that no "emergency" exists. He will therefore hear the Schindlers' motion in the ordinary course.

...posted by ⊥ 1:17 PM ⊥ #

Schiavo Coverage Update

As you have no doubt noticed, my update of the Terri Schiavo Information Page to address both the guardianship proceeding and the constitutional challenge has been slow to arrive. I am still working on it.

Meanwhile, though, to help those looking for a bigger picture view of what's been going on, I have begun compiling my Terri Schiavo-related posts into separate Abstract Appeal pages. The first such page is now available here, and it includes the Schiavo-related Abstract Appeal posts from 2003.

...posted by ⊥ 8:06 AM ⊥ #

Tuesday, May 11, 2004

Eleventh Circuit: They All Sue For Ice Cream

Quick: Does brown ice cream's color indicate that it's a particular flavor? How about white? Pink? They all do, of course, and that's partly why, in this case, the Eleventh Circuit concluded that the colors used in Dippin' Dots ice cream are functional, not just aesthetic. The court therefore upheld a summary judgment against Dippin' Dots on its trade dress claims against, wouldn't you know, rebel upstart Frosty Bites.

By the way, what are the odds the Eleventh Circuit visited the corporate sites linked in this post? They sure help show off the products.

...posted by ⊥ 10:57 PM ⊥ #

Eleventh Circuit: Sentencing

If you are in the market for a concise primer on the federal law governing departure sentences, check out this decision from the Eleventh Circuit.

...posted by ⊥ 10:55 PM ⊥ #

Eleventh Circuit: Right to Call Witnesses

On page 18 of this 21-page decision, the Eleventh Circuit explained that the propriety of a trial court's decision to exclude a witness was entirely mooted by that court's offer to instruct the jury on a particular point of law. The prior pages were nonetheless worth publishing, as they provide a back-to-basics discussion on the constitutional right to call witnesses, which the court concluded was in all events not violated in the case. Then again, maybe the court published the decision to explain that the defendant's convictions on two counts were affirmed because her trial attorney failed to preserve a technical argument that the proofs at trial did not satisfy the specific language of her indictment, which the court also observed to have been unnecessarily narrow.

...posted by ⊥ 10:45 PM ⊥ #

Fifth District: Preservation of Error

In dissolution cases, a trial court's order will generally not be found in error for failure to include sufficient factual findings unless the appellant brought the lack of findings to the trial court's attention. That was the holding reached by the Fifth District in this case, which also pointed out that the appellate court retains the discretion to remand any particular case for additional findings.

As an aside, note who the trial judge was in this case.

...posted by ⊥ 8:45 AM ⊥ #

Second District: "Untenable" DCF

In this case, the Second District seemed a bit -- but only a bit -- disturbed by the Department of Children and Families' decision, as the court put it, to ignore an unambiguous statute. I suppose this supports my earlier theory.

...posted by ⊥ 8:33 AM ⊥ #

Fifth District: Nursing Home Injuries

Years ago, the Florida Supreme Court held that an automobile manufacturer in a crashworthiness case could not diminish its liability based on the fault of the person who caused the crash. In this case, the Fifth District considered a plaintiff's argument that the same result should apply in a suit against a nursing home where the home sought to apportion fault with a hospital. The appellate court held that, because the trial court properly found that only a single injury occurred in the case, fault could be apportioned.

...posted by ⊥ 7:57 AM ⊥ #

Second District: Unemployment Claims Conflict

To be entitled to receive unemployment benefits while you are appealing a denial of entitlement, must you continue to claim those benefits? In 1999, the Third District said no. On Friday, the Second District disagreed with that holding in this decision, which affirmed an Unemployment Appeals Commission's decision to deny benefits not claimed while the claimant appealed a prior order denying entitlement.

Without suggesting any error by anyone, I note that this case highlights a curious corner of the legal system, where the sole district court decision on point may not be binding in other districts even prior to the time an interdistrict conflict arises.

...posted by ⊥ 7:45 AM ⊥ #

Fifth District: Collateral Cert In Insurance Cases?

Is an insurer's certiorari petition that addresses an effort to disqualify an insured's attorneys collateral to the insured's efforts to obtain benefits under a policy, so as to preclude the higher court from awarding a prevailing insured fees under section 627.428 or (in PIP cases) section 627.736? In this decision, which reheard and withdraw a prior decision to the contrary, the Fifth District said no. The insureds who prevailed in the certiorari proceeding were entitled to fees.

...posted by ⊥ 7:43 AM ⊥ #

Fifth District: Certiorari Limitations

Just a reminder here from the Fifth District: certiorari review will not permit a district court to examine the merits of a trial court's decision allowing a punitive damages claim to be pled, though a petition for certiorari can be used to challenge the procedure used to make that determination.

...posted by ⊥ 7:20 AM ⊥ #

Monday, May 10, 2004

Schiavo News

This weekend, I linked a news story about how Michael Schiavo's attorneys seem equivocal about whether they will at some point ask for the automatic stay to be lifted during the appeals process. After mulling it over for a couple of days, I still do not understand what basis exists to believe there is any chance the automatic stay could be lifted in this case.

Under Florida's appellate rules, public officers obtain an automatic stay of a lower court's order when they invoke a Florida court's appellate jurisdiction. There are various reasons for this, but suffice it to say that a stay generally serves the public interest by maintaining the status quo until the appellate court can review the decision being appealed. The lower court or the appellate court may vacate the automatic stay, but this will only happen upon request, and then only if the court deems that result to be just.

Assuming Governor Bush has a basis for invoking a Florida court's appellate jurisdiction in this case, whether the court be the Second District Court of Appeal or the Florida Supreme Court, it is difficult to believe that any court would grant a motion to vacate the automatic stay. Vacating the stay would render the appeal moot, since enforcing the trial court's order would, in short order, result in Terri's death. Expect the stay to stick around.

...posted by ⊥ 6:44 PM ⊥ #

Completely Certifiable

As I learned them, I previously posted the names of those Florida lawyers who this year became board certified in appellate practice. The complete list is now available from the Bar, and it contains seven names. They are:

Shannon Carlyle
Edward Guedes
Sonya Hoener
Scot Samis
Ryan Truskoski
Timothy Weber

and

Me

By the way, because the next certification period does not formally begin until June 1, 2004, I previously wondered aloud whether we may be referred to as "board certified" now or whether we are merely specialists-in-waiting. The answer may lie in the most recent release of "The Record" -- the Florida Bar Appellate Practice Section's journal. It contains a story by Edward Guedes, and his byline bio names him as a board certified appellate attorney....

...posted by ⊥ 7:36 AM ⊥ #

Blogger Thoughts

Well, after Blogger announced that it would be updating its interface yesterday, I was more than a bit eager to see the changes. I was really hoping I could use some new features, like categories, to improve Abstract Appeal's legal coverage, particularly the Schiavo coverage.

Having explored the updates, I must confess: they're horrific. The post editor has taken several giant steps backwards, and while there are some new features, categories is not one of them. Arrrrgh. I will try posting with the new user interface for a bit, but…

...posted by ⊥ 6:21 AM ⊥ #

Schiavo Thoughts

I really appreciate the many emails I received over the weekend, encouraging me to explore further the misperceived legal issues in the Schiavo case. Some of you even made suggestions on what issues to examine. I've come to think I can do more good than harm by looking at the case in a bit more legal detail.

The risk, of course, is alienating or offending people who see certain legal views as "favoring" one side or another in the case. I will do my best to leave that risk unrealized.

...posted by ⊥ 6:03 AM ⊥ #

Saturday, May 08, 2004

Schiavo News

The latest report on the Schiavo saga is available here, from the Tampa Tribune. The story discusses how Michael Schiavo's attorneys are unsure whether or when they might ask the courts to lift the automatic stay on Judge Baird's recent ruling. That ruling, discussed at length in this post, held "Terri's Law" unconstitutional and enjoined Governor Bush from taking any action under the authority of that law.

...posted by ⊥ 9:16 AM ⊥ #

Dilemma

Over the course of the Terri Schiavo saga, I have at times wandered, virtually speaking, into the various sites and fora where well-intended folks are discussing, sometimes rather passionately, the events surrounding this case. I have done that quite a bit the last couple of days, and I must say, I am left in a quandary. Let me explain. As someone who devotes his life to studying and, in many senses, promoting the law, I always appreciate hearing how more casual legal observers view the law and the legal system, and yet it affects me when I see people embrace a legal view that, while sincerely held, is misinformed. I'm presently debating whether I can help things by trying to explain more of the legal concepts at issue here, and if so, which ones to focus on.

...posted by ⊥ 9:09 AM ⊥ #

Friday, May 07, 2004

Friday Florida Law Trivia Answer

The State of Florida holds title to waters that were navigable when Florida became a state -- in 1845.

A recent decision from the Fifth District dealt with this concept and quoted the trial court's observation about the difficulties the navigability inquiry can entail:

Baron Sykes had it easy. All he had to do was wrestle an alligator in 1857 up a stream that now bears his name because of the incident. It is left to the undersigned to determine how far north a log could have then floated on that same Creek one hundred-forty-six years later. I presume both the Baron and the alligator are dead and cannot be of any help.

Florida law is filled with strange subjects.

...posted by ⊥ 4:58 PM ⊥ #

Friday Florida Law Trivia!

As many of you know, each Friday morning Abstract Appeal posts a trivia question regarding Florida law. The answer is posted each Friday evening. Most weeks, the question and answer come from fellow blogger Hunter Carroll. Hunter and I practice appellate law together with Carlton Fields, and the man surely knows a good deal of trivia. On occasion, though, like today, Hunter finds himself wrapped up in a brief and I take over the "trivial" duties. Here goes:

In Florida, navigable waterways are the property of the state, not private landowners, but only if they are navigable at what point in time?

I'll post the answer today at approximately 4:45 PM EST.

...posted by ⊥ 10:09 AM ⊥ #

Schiavo News

I can tell from the emails sent in to Abstract Appeal since yesterday evening that folks out there are interested in numerous angles on Judge Baird's recent decision: what it says, what it means for Terri now, how it is affected by the pending guardianship proceedings, what happens next, etc. I will try to balance addressing these concerns in some detail with not creating a tome that is difficult to digest.

First, let's talk about where things are. Remember that there are two separate cases being litigated. The first is the guardianship case (discussed thoroughly on the Terri Schiavo Information Page). That's the case currently before Judge Greer, in which the court held a trial years ago to determine Terri's wishes and concluded, in February 2000, that Terri would not wish to continue receiving nurishment through a feeding tube in her present condition. That decision was upheld after numerous appeals by Terri's parents, who were (and remain) on the other side of Michael Schiavo in that case. That decision also withstood a second trial before the guardianship court, in which the Schindlers were given a chance in October 2002 to prove that some new medical technology or treatment had come along that, if Terri knew about, would make her change her mind about whether to continue receiving the feeding tube. The court found that nothing new would change Terri's mind. The Schindlers appealed that decision, but it was also upheld at every level. The guardianship case is still being litigated. Terri's parents are still persuing various means to disqualify Michael Schiavo as Terri's guardian. Unless those pursuits are successful, and thus far they have not been, they will have no bearing on the second case -- the constitutional challenge.

The constitutional challenge began last year, after the Legislature enacted what has come to be known as "Terri's Law." Despite the judicial branch's decisions that Terri would not want to receive a feeding tube in her condition, and the removal of that tube in accordance with Terri's judically-determined wishes, the new law authorized the Governor to order a feeding tube inserted into Terri or anyone else who met the law's very-Terri-like criteria. The law was in effect for only 15 days, and during that time, Governor Bush ordered Terri's tube reinserted. Michael Schiavo then challenged the Governor's actions and the new law as unconstitutional. That case was assigned to Judge Baird. It has gone on for over six months with various procedural issues receiving the most attention, but yesterday Judge Baird issued a ruling (available here) in favor of Michael Schiavo on the merits of his challenges. Judge Baird ruled Terri's Law unconstitutional.

Without regard to any particular constitutional right or requirement, there are two ways a law can be unconstitutional, and Judge Baird's order found Terri's Law unconstitutional under both. The first way is what lawyers refer to as "facial" unconstitutionality, as in "the law is unconstitutional on its face." Though the term might seem peculiar, it is quite accurate. It means that by just reading the law, without having to rely on how it operates in any particular case, you can tell that it necessarily conflicts with controlling constitutional principles and is therefore invalid.

Judge Baird found Terri's Law unconstitutional on its face based on two constitutional principles: separation of powers and the right of privacy. The separation of powers principle itself consists of multiple principles, one of which is that, simply put, the Legislature cannot give someone else unbridled discretion to do or not do something significant. Take, for instance, a driver's license. The Legislature could not enact a law that authorizes the motor vehicles department to give licenses out whenever the department feels like doing so, or to take licenses away whenever the department wishes. There must be standards that the executive branch person (or municipal person) must follow, or else the executive branch person making the decision has in effect become a mini-Legislature, making the law up as he or she goes.

Michael Schiavo argued that Terri's Law gave Governor Bush unbridled discretion regarding how to apply that law to any particular person. Judge Baird agreed.

The right of privacy is a constitutional right existing under both federal law and Florida law. Florida's courts have repeatedly held that the right under Florida law is more expansive, and more protecting of privacy, than the federal law. The right basically says that you have the right to be left alone from governmental intrusions into your private life. Now, that is a broad principle not easily applied in particular contexts, but here the task is a bit easier because the Florida Supreme Court has previously decided that Florida's right of privacy gives all Florida citizens the right to refuse medical treatment. That court has also determined that medical treatment includes the use of a feeding tube and that, where a person is too incapacitated to make or reveal a decision about medical treatment, another person can step in as the incapacitated person's proxy and determine what decision the incapacitated person would make.

Michael Schiavo argued that Terri's Law violated Terri's right of privacy. Now, that might seem like an odd argument, in the sense that Terri's Law was enacted because certain people believe she may not want to die, and thus it can seem strange to say that she cannot be kept alive as she would wish based on her own right to privacy. But that way of thinking sidesteps the proper legal analysis. Terri, like all Florida citizens, has a constitutional right to make up her own mind (or have another determine how she would make it up), and Terri's Law permits the Governor to order a feeding tube to be inserted or remain in place regardless of the individual's wishes. Importantly, the Governor did not disagree that, in this sense, the law intrudes on a person's right to privacy. The Governor argued, though, that the intrusion was a permissible one because it allowed him to protect a person's life. Judge Baird rejected that argument, relying on prior Florida Supreme Court case law to say that the state's interest in preserving life was not sufficient to ignore the individual's wishes regarding medical treatment.

The second way that a law can be unconstitutional is what lawyers refer to as an unconstitional application, as in "that law is unconstitutional as applied to my client." This occurs where a law may be facially constitutional because it can be constitutionally applied in some cases, but it cannot be constitutionally applied under the particular facts of the case before the court. Here, Michael Schiavo argued that Terri's Law was unconstitional as applied to Terri based on numerous constitutional principles, and Judge Baird agreed with regard to two of them.

The first "as applied" challenge ruled on by the judge was based on another separation of powers principle: the notion that the Legislature may not intrude into the judiciary's decisionmaking in a particular case. Judge Baird concluded that Terri's Law improperly amounted to a legislative overruling of the judiciary's final decision about Terri's wishes.

The second "as applied" challenge ruled on by the judge was based on the due process concept that legislation should not be retroactively applied to a situation where a person's rights have already vested. This can get a bit complicated, but the short of it is that where the law recognizes past events give you a certain right, that right cannot be taken away. Here, Michael Schiavo argued that Terri's decision about whether to receive a feeding tube had already been made and put into effect, and thus it was too late for the Legislature to pass a new law making that decision ineffective. Judge Baird agreed.

Stepping back from it all, I am a little surprised that Judge Baird's order was as short as it was. He did not address a handful of significant arguments that will need to be resolved in favor of Governor Bush if the Governor is ultimately to win this case. Judge Baird has apparently decided that he has addressed enough arguments to doom Terri's Law, and if he is wrong on all of them, then he can address the others later.

The news media have reported that Governor Bush immediately began the process of appealing Judge Baird's order. While the appeal proceeds, the status quo will remain in place, and Terri will continue to receive nurishment through her feeding tube.

The Governor's appeal will be to Florida's Second District Court of Appeal. Because the Florida Supreme Court is required under the Florida Constitution to review district court decisions declaring state statutes unconstitutional and permitted to review decisions declaring state statutes constitutional, it is possible that the Second District may immediately ask that court to review Judge Baird's decision now, eliminating one level of review and speeding up the appellate process. Either Michael Schiavo or Governor Bush might ask the Second District to do that, too. I will write more on this if it becomes an issue.

Suffice it to say, at this point, that this case could be decided by the Florida Supreme Court before it is over, but it appears unlikely that the case will ever go any further. The United States Supreme Court does not usually agree to hear cases that are very much based on state law, and nearly every legal principle at issue in this case is based on Florida's Constitution and other Florida law. It is not impossible that the case will be heard by the United States Supreme Court, and the odds of that court hearing the case certainly get better if Michael Schiavo loses in the Florida courts, but at this point it is probably most accurate, as guesses go, to guess that when Florida's courts are done with this case, the losing side will ask the United States Supreme Court to review it, and the nation's highest court will decline to do so.

Back to the present, Governor Bush is appealing Judge Baird's decision to the Second District. The briefing stage of that process will take months to complete. Expecting a decision from that court in 2004 would be extremely optimistic, and, of course, there will be further proceedings once the Second District has completed its work in the case. There is a long road ahead. I will continue to try to inform Abstract Appeal readers of what is happening without taking sides. Stay tuned.

...posted by ⊥ 4:16 AM ⊥ #

Thursday, May 06, 2004

Schiavo News

This afternoon, the AP reported here that Judge Baird has declared "Terri's law" unconstitutional. According to the story, the judge ruled the law unconstitutional based on Terri's right to privacy and because it "delegated legislative power to the governor."

The ruling itself is available here (from Terri's Fight) and here (from FindLaw). I will offer some extensive thoughts on this order late tonight.

...posted by ⊥ 4:48 PM ⊥ #

Conversion Complaint

You may recall this Abstract Appeal post from December. It linked an AP story about a woman's defamation suit over a newsletter's claim that she converted to Judaism. Yesterday, in this update, the AP reported that the trial judge has dismissed the suit without prejudice. The story is not clear but it suggests the court did so on grounds the conversion statements were not defamatory. The woman has been given an opportunity to replead her complaint.

...posted by ⊥ 8:01 AM ⊥ #

Fourth District: Fraudulent Inducement

Can you sue for being fraudulently induced into a contract that is unenforceable? The plaintiff in this case could not. The Fourth District held that the fraudulent inducement claim was merely an attempt to circumvent Florida law's refusal to permit a claim for breach of an oral contract terminable at will.

...posted by ⊥ 7:35 AM ⊥ #

Wednesday, May 05, 2004

? Link

I've been told the link provided in Monday's post on the Eleventh Circuit's AEDPA decision -- this link -- does not work. That's correct, in a sense. The link is to the Court's opinion, and I'm not sure why, but if you pull the opinion up in Internet Explorer, the Acrobat plug-in generates an error. The opinion will load correctly, however, if you right-click on the link, select "save target as" to save the file to your hard drive, and then open the file directly through Windows. Voila.

...posted by ⊥ 3:13 PM ⊥ #

Tuesday, May 04, 2004

Constitutional Cafeteria

A proposal to set the minimum wage at $6.15, thereafter indexed by inflation, is just part of the veritable cornucopia of state constitutional amendments being advanced this year by Florida's special interest groups. The AP has this story on how the minimum wage amendment's sponsors have accumulated enough voter signatures to send the proposal to the Florida Supreme Court. That court reviews proposed amendments to determine if their subject, title, and summary meet certain legal requirements to be placed on the ballot. You can read the minimum wage proposal itself here. Note that it includes a right to attorney's fees in suits for violation of the new wage requirements.

...posted by ⊥ 6:29 AM ⊥ #

Second's PCAs

Up until some point last week, the Second District was the only district court of appeal that did not publish on the Internet its per curiam affirmed and dismissed opinion list. Last week, however, that court added a new "Per Curiam Affirmances and Citation PCAs" page. It's available just off the main Opinions page.

That's a great step by the Second District. Florida's district courts of appeal dispose of most of their cases by PCA opinions, and now we can finally track all of the PCAs for all of the DCAs. (For those who may not know, "PCA" is a sort of appellate slang for an opinion with no attribution to any particular judge, just the panel, and which affirms the decision on review with no written explanation other than, at most, a citation to a case. The basic idea behind a PCA is that the panel believes the case law would not be furthered by publishing a written explanation of the court's decision.)

...posted by ⊥ 6:08 AM ⊥ #

Monday, May 03, 2004

Session Results

The 2004 legislative session ended this past Friday. To update the fate of two bills that received mention on Abstract Appeal over the past couple of months:

Sixth DCA bill -- This legally controversial bill (remember this post?) died in the Senate, though it may be more accurate to say it was poisoned in the House. Unfortunately, the bill addressed not only expanding the district courts of appeal but funding the dozens of additional trial and appellate judge positions for which the Florida Supreme Court certified a need. So we have no new judgeships and no new district court.

Parental Notification Amendment -- This politically controversial bill places on the November 2004 ballot a proposed constitutional amendment generally requiring parental notification before minors may obtain abortions. It passed.

More updates to follow…

...posted by ⊥ 6:20 AM ⊥ #

Eleventh Circuit: Mail Fraud

Will the law absolve you of a mail fraud conviction on the ground that your fraudulent conduct was so absurd that it could not reasonably have been relied upon? The Eleventh Circuit has previously answered this question in the affirmative, though the court held that the fraudulent conduct in this recent case did not meet that, well, low standard. Judge Barkett dissented, finding the conduct in the two cases indistinguishably ridiculous.

...posted by ⊥ 5:39 AM ⊥ #

Second District: Fees for Fees

Does the general prohibition on awarding attorney's fees for litigating the amount of a party's reasonable attorney's fees apply in family law cases where fees may be awarded under section 61.16? In a decision that may surprise some family law lawyers, in this case, the Second District held that the general rule applies.

...posted by ⊥ 5:18 AM ⊥ #

Second District: Judicial Infallibility

The Second District's Chief Judge Altenbernd is widely regarded as having one of the finest minds in the Florida judiciary. Yet he's not above admitting to a little confusion on occasion. Check out this decision and its first footnote.

...posted by ⊥ 5:12 AM ⊥ #

First District: Child Porn Law

In this case, the First District upheld the computer-related chid porn portion of Florida's Computer Pornography and Child Exploitation Prevention Act from a series of First Amendment and Commerce Clause challenges.

...posted by ⊥ 5:02 AM ⊥ #

Eleventh Circuit: Anticircumvention for the Antiterrorism and Effective Death Penalty Act's Limitations

Is a certificate of appealability required when a prison inmate loses a Rule 60(b) motion to reopen a judgment that denied relief under 28 U.S.C. § 2254 or 2255? This question affects how easily a defendant can appeal an order rejecting what has become a common way to try to circumvent the Antiterrorism and Effective Death Penalty Act's general bar on successive petitions: a motion to reopen the original judgment. Sitting en banc, the Eleventh Circuit tackled the certificate of appealability question in this order, which addressed three cases and held that a certificate is required and, with two exceptions (clerical errors and fraud), Rule 60(b) motions in postconviction proceedings should be treated as successive petitions. The order is well written, as is the partial dissent, but those planning on reading them together should pack a lunch. The entire order runs 133 pages.

...posted by ⊥ 4:49 AM ⊥ #

Sunday, May 02, 2004

Questions, questions

How much do you know about the "products-completed operations hazard" exclusion in commercial general liability insurance policies? The Eleventh Circuit would like to know more about it in the context of this Florida law case. The case concerns a gun manufacturer's efforts to obtain a defense from its insurers for suits brought by muncipalities attempting to recover various costs associated with gun violence.

The case turns on the manufacturer's argument that coverage could exist despite the exclusion because each suit contains a claim supposedly based not on the gun products themselves but on the insurer's "on-premises" conduct, such as negligent marketing, failure to warn, etc. The Eleventh Circuit noted that the parties' arguments raised an interesting uncertainty in Florida insurance law and, looking for guidance, the court certified the following question to the Supreme Court of Florida:

DOES A "PRODUCTS-COMPLETED OPERATIONS HAZARD" EXCLUSION IN A COMMERCIAL GENERAL LIABILITY POLICY OF INSURANCE BAR COVERAGE AND THEREFORE ELIMINATE AN INSURER'S DUTY TO DEFEND THE INSURED GUN MANUFACTURER IN SUITS ALLEGING NEGLIGENCE, NEGLIGENT SUPERVISION, NEGLIGENT MARKETING, NEGLIGENT DISTRIBUTION, NEGLIGENT ADVERTISING, NEGLIGENT ENTRUSTMENT, PUBLIC AND PRIVATE NUISANCE, FAILURE TO WARN, FALSE ADVERTISING, AND UNFAIR AND DECEPTIVE TRADE PRACTICES BASED ON THE INSURED'S ON-PREMISES BUSINESS PRACTICES[?]

The Florida Supreme Court's decision in this case should interest those who follow products liability law or insurance law.

...posted by ⊥ 7:32 AM ⊥ #

Eleventh Circuit: Handwriting Evidence

If you intend to submit evidence in federal court challenging a signature's authenticity, you should first read this case from the Eleventh Circuit, which discusses the interplay between Rule 701 and Rule 901(b)(2).

...posted by ⊥ 6:53 AM ⊥ #

Saturday, May 01, 2004

Eleventh Circuit: Defining Violence

In this case, the Eleventh Circuit held that a prior conviction for statutory rape (sexual activity with a person under the age of consent) constitutes a prior conviction for a crime of violence under the federal sentencing guidelines.

...posted by ⊥ 12:14 PM ⊥ #

Questions, Questions

Echoing questions raised in 2002 by another district, the Fourth District in this case certified the following to the Supreme Court of Florida as questions of great public importance:

IS A PLEA AGREEMENT FOR PRISON TIME FOLLOWED BY PROBATION VIOLATED WHEN THE STATE LATER INITIATES DISCRETIONARY CIVIL COMMITMENT PROCEEDINGS UNDER THE JIMMY RYCE ACT (PART V OF CHAPTER 394, FLORIDA STATUTES)?

IN THE CIRCUMSTANCES DESCRIBED IN THE FIRST QUESTION, IS THE STATE BARRED BY EQUITABLE ESTOPPEL FROM SEEKING CIVIL COMMITMENT?

...posted by ⊥ 12:09 PM ⊥ #

Eleventh Circuit: Explaining Summary Judgments

In a message directed to federal district court judges, the Eleventh Circuit took the opportunity in this case to, um, urge that orders granting summary judgment indicate the basis for the order. The decision also contains a very interesting discussion on Title VII theories and how they can and should be pled.

...posted by ⊥ 12:00 PM ⊥ #

Eleventh Circuit: Review of Remand Orders

Earlier this month, in this case, the Eleventh Circuit addressed whether a defendant's conduct in state court waived the defendant's right to remove the case to federal court. Some may have wondered how the appellate court even had jurisdiction to hear that appeal, since 28 U.S.C. § 1447(d) states that orders remanding cases to state court are not reviewable on appeal. The answer arrived this week in this case, where the court distinguished between removal jurisdiction and subject matter jurisdiction and held that only orders remanding cases to state court for lack of subject matter jurisdiction are not reviewable on appeal.

...posted by ⊥ 11:42 AM ⊥ #

Second District: Taking It In Stride

The Second District must be tough to offend, because there was nary a complaint from the court when the Department of Children and Families did not even file a brief in this mother's appeal from an order terminating her parental rights. The mother won.

...posted by ⊥ 11:27 AM ⊥ #

First District: Arbitration

Arbitration fans may wish to check out this decision from the First District, which concerns when an agent of a party to an arbitration agreement can enforce the agreement.

...posted by ⊥ 11:22 AM ⊥ #