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Wednesday, June 30, 2004
 
Supreme Review
Yesterday, the Florida Supreme Court heard oral arguments in four citizens' initiative cases, where the court examines a constitutional amendment proposed by the public to ensure it complies with the Florida Constitution's requirements regarding its title and ballot summary and that it pertain to a single subject. The four proposals at issue were the proposal to double the homestead exemption, the proposal to increase Florida's minimum wage, the proposal to require legislative review of Florida's sales tax exemptions (remember John McKay?), and the proposal to repeal the high-speed rail amendment voters adopted in 2000.

This story from today's Sun-Sentinel focuses on the argument regarding the homestead exemption proposal, which is being challenged for, among other things, its ballot summary's accuracy. The complete summary states:

This amendment provides property tax relief to Florida home owners by increasing the homestead exemption on property assessments by an additional $25,000.
There are several asserted problems with that language, including that the amendment does not affect every home owner and that it does not technically provide "relief" -- it lowers the tax base by reducing homes' taxable base value, but taxing authorities could increase the rate to make up some or all of the difference.

I think the ballot summary issue for the homestead exemption amendment is interesting, but not as interesting as the price tag. The Legislature's Office of Economic and Demographic Research has come up with a financial impact statement for this proposed amendment. The statement provides that the proposed increase in the exemption "would reduce property tax revenues for cities, counties, schools, and special districts by approximately $2 billion, based on 2003 tax rates." (You can read the entire statement here).

Keep in mind, this coming election will be the first time that voters get to see public financial impact statements when they vote on proposed constitutional amendments. Thank goodness.

 
More Dog News
A Largo man saw police entering his mobile home park, which prompted him to run, leaving his dog in his Jeep in the midday Florida sun. When the man returned a few hours later, the dog had died, prompting police to arrest him for animal cruelty. Read about it here in today's St. Pete Times.

 
Dog Suit
Today's Naples Daily News has this story about a woman's suit against a pet transportation company that was paid to drive her dog to Boston. The dog died on the way, and the woman is now seeking compensatory and punitive damages for negligence and fraud. From the looks of the paper's web site, this is serious news in Naples.

 
First District: Attorney General and Special Laws
Is the state's Attorney General an indispensable party to an action to declare a law unconstitutional? No, as explained in this decision from the First District. Though the AG must be served in the case, the AG can elect not to participate without affecting the validity of the proceedings. The First District's decision is also noteworthy for its discussion of when a law constitutes an unconstitutionally enacted special law. The court affirmed a decision finding unconstitutional, as a special law not enacted pursuant to the applicable constitutional procedures, a law permitting hospitals in only certain counties with adult open-heart services to be exempt from generally applicable certificate of need requirements.

Those of you following the Terri Schiavo constitutional case may recall that Michael Schiavo argued "Terri's Law" to be an unconstitutional special law, but the circuit court declared the law unconstitutional on several other grounds before reaching this argument.



Tuesday, June 29, 2004
 
But Wait, There's More...
Tonight, Associated Press has its own short list of interesting new laws in this story on new laws that take effect Thursday.

 
Legislation Update
A few quick legislation-related updates:

- the Central Florida beltway legislation (good for our black bears, better for our I-4 captives): Signed. (more here)

- the commercial real estate lien act (much scoffed by real estate lawyers because it would allow brokers to file liens based on commission agreements not made in writing): Vetoed.

- the condominium association law rewrite (why, oh, why did I become president of my condo building's association???): Signed.

- the law against promoting self-murder (remember when that band got a whole lot of national press for announcing a concert in St. Petersburg featuring a suicide?): Signed.

- Florida's spam law ($500 per email violation!): Signed.

 
Petition Troubles
We are heading into that biennial funtime that might be called petition season -- when proposed citizen initiatives to amend the state constitution go through the processes of signature collection, state supreme court review, public relations bombardment, and, if they are lucky, a general election vote.

A few items are having trouble at the petition stage. Today's Pensacola News-Journal has this interesting story about how forgeries have been spotted on petitions being circulated in some panhandle counties. And the Associated Press has this story about a lawsuit challenging petitions used to collect signatures in support of Governor Bush's proposal to derail the high-speed rail amendment voters approved in 2000.

 
Workout Suit Worked Out
Today's Tallahassee Democrat has this story on the settlement of Devaughn Darling's estate's wrongful death suit against Florida State University. Darling was a linebacker on the school's football team who died in 2001 during off-season workout drills. Note that under Florida law the family will need to obtain a claims bill from the Legislature next session in order to collect the top $1.8 million of the settlement.

 
Eleventh Circuit: Rolling, Rolling, Rolling
If you'll pardon the second Rawhide reference in a week, you may be interested in this decision released yesterday by the Eleventh Circuit. The court construed the federal Wilderness Act to preclude the National Park Service from using motor vehicles to transport visitors across certain portions of Cumberland Island, Georgia. The case includes two notable notes: one on page 7 that deals with when a post-litigation change in conduct may result in mootness, and one on page 14 that identifies common sense as the most fundamental guide to statutory construction.



Monday, June 28, 2004
 
Appellate Tips
One of the events I attended last week at The Florida Bar's annual meeting was the annual question and answer session with the Florida Supreme Court. Five of the justices attended -- Chief Justice Anstead, soon-to-be-chief Justice Pariente, and Justices Wells, Cantero, and Bell.

A couple of comments by the justices caught my ear, and I thought I would pass them along here.

On the subject of cases that take a long time to be decided, Chief Justice Anstead explained that attorneys can place discrete calls to the clerk's office to check on a case's status, and the inquiry will be passed on to the court without attribution to any particular caller. Justice Wells further commented that he thinks it can be appropriate for an attorney to file a motion at some point, such as a motion to expedite.

Also, responding to a question (or was it a comment?) about how the court makes jurisdictional decisions in certified question cases after the briefing is completed, Justice Pariente commented that she would be willing to consider an early motion to dismiss that raises jurisdictional arguments.

There you go. Now, let's not all start calling the clerk's office, moving to expedite, and moving to dismiss...



Sunday, June 27, 2004
 
Supreme Court: PIP Party
This last week saw the Supreme Court of Florida release two PIP cases. I don't expect to say that very often. In one case, available here, the court held that PIP setoffs must be performed by the trier of fact (generally a jury) absent agreement by the parties. In the second case, available here, the court held that PIP setoffs should be made from the factfinder's economic damages award before, not after, that award is reduced by the amount of any comparative negligence on the plaintiff's part.

 
Fifth District: Fees for Fees?
Are attorney's fees expended to determine whether a plaintiff's attorney is entitled to a contingency risk fee multplier considered fees incurred in determining entitlement to fees (in which case they're taxable) or in determining the amount of fees (in which case they're not taxable)? For the correct answer, and a dissent, check out this decision from the Fifth District.

 
Eleventh Circuit: Citizenship of LLCs
A limited liability company is a citizen of which state? The Eleventh Circuit has the answer in this decision. The court also discusses how citizenship must be alleged when a case involving an LLC is removed to federal court.

 
Eleventh Circuit: Reviewing MPPAA Arbitration Awards
In this decision, the Eleventh Circuit discussed the standards to be applied in this circuit when a district court reviews an arbitration award made under the Multi-Employer Pension Plan Amendments Act: factual decisions are reviewed for clear error, and legal decisions are reviewed de novo.

 
Fifth District: S-Corp Assets
If you happen to be involved in a divorce where one party's assets include ownership of a Subchapter S corporation, then you will probably want to check out the Fifth District's decision in this dissolution case.

 
Eleventh Circuit: Right For The Wrong Reason
I've meant to blog this decision for well over a week: the Eleventh Circuit has finally stated, in text, the well-established appellate principle that a lower court's decision may be affirmed even if that court's reasoning was wrong, so long as the result below is supported by another ground. In Florida, we refer to this as the "tipsy coachman rule." One of these days, I'll blog about why.

 
Fourth District: When Interest Gets Interesting
Sticking with the hot topic notion, the issue of post-verdict, pre-judgment interest should be expected to heat up again with the Fourth District's release of its opinion in this case. The decision might make you wonder what the Florida Supreme Court really meant when it decided Amerace Corp. v. Stalling.

 
Fourth District: Rule 1.525
Wondering what might be a "hot topic" in Florida law right now? How about the timeliness of an attorney's fees motion under Rule 1.525, a topic discussed again in this decision from the Fourth District.

 
Supreme Court: 3.850 Motions
If you practice criminal law, or if you happen to have a personal need for post-conviction relief, you may be interested in the Rule 3.850 discussion found in this decision issued Thursday by the Florida Supreme Court.

 
Fourth District: Passing the Sniff Test, Or Not
This decision from the Fourth District is last week's must-read for any Fourth Amendment fan. The case concerns the constitutionality of a search warrant issued, in part, on the basis of a canine's previous alert at the front door of the home to be searched. The majority held that the use of the dog to sniff for drugs at a front door constituted an unlawful search and that the resulting warrant was consequently invalid. Judge Gross offered a contrary point of view in an interesting dissent, arguing that use of the dog at a doorstep that the public could approach was not a search at all.

This is a fascinating issue, and one on which reasonable persons could differ.

The Miami Herald ran this story on the case on Thursday. Thanks to the loyal Abstract Appeal reader who sent me this link.



Saturday, June 26, 2004
 
Third District: Renewing An Old PIP Conflict
Is an insured tortfeasor entitled to a PIP setoff where the claimant is unlawfully uninsured and thus lacks PIP coverage? In this decision, the Third District said yes, joining one other district and certifying conflict with two others. Given that the losing party in this appeal is the claimant, and that the amount at issue is probably $10,000, appealing the Third District's decision may be economically impractical, and this conflict, which has already been around for a few years, may be around a bit longer. Just a thought.

 
Third District: Move 'Em On, Head 'Em Up...
This decision from the Third District reversed a criminal judgment for a new trial because the trial judge repeatedly told defense counsel to move on during cross-examination, limiting that examination's effectiveness.

As an appellate lawyer, I cannot help but wonder if defense counsel was required to do anything to preserve the interruption issue for review. I hope not...



Friday, June 25, 2004
 
Abstract Pause
I have just spent the past couple of days in Boca Raton for The Florida Bar's annual meeting, which was excellent as usual and very well attended at the appellate events. The annual meeting is still going on, but I've returned to St. Pete for work purposes. That same work is going to keep me away from the blog during the day today, and all of the above is keeping Hunter hopping -- he's still in Boca. As a result, we are going to take today off from Florida Law Trivia, and I will be back to blogging (and answering email) as soon as I can.

Have a great day.



Thursday, June 24, 2004
 
Third District: Caring About Carrying
Because the armed robbery portion of Florida's robbery statute, section 812.13, refers to carrying weapons, not using them, the Third District in this case vacated a conviction for armed robbery (reducing it to strong-arm robbery) where the weapon utilized by the defendant was a car. You cannot carry a car.

 
Second District: Land Use Review
Land use fans will be interested in this decision released yesterday by the Second District. The decision reversed a trial court's decision not to disturb a city commission ruling on a requested small-scale development amendment to the city's comprehensive plan. The three-judge panel produced three opinions -- a majority, a concurrence, and a dissent -- and all three focused on how the "fairly debatable" standard of review should be applied to the evidence adduced before the commission.

 
Constitutional Costs
The AP is running a story, available here, on the price tags that state analysts are coming up with for some proposed constitutional amendments that may make this year's ballot. Worth noting: Florida's cities and counties will lose an estimated $2 billion under the proposal to double the homestead tax exemption.

To quote the ever-affable, if a bit sardonic, character Vinny Gambini: Ya think?



Wednesday, June 23, 2004
 
Eleventh Circuit: Securities Litigation
Securities lawyers may wish to note this case decided yesterday by the Eleventh Circuit. The court made clear that scienter in a complaint governed by the Private Securities Litigation Reform Act may be inferred from an aggregation of a complaint's factual allegations, and that scienter must be shown for each alleged statutory violation.

 
Eleventh Circuit: Debt Collection Act
If your practice involves collecting debts, you may be interested in this decision from the Eleventh Circuit concerning the Fair Debt Collection Practices Act. The court held that a debt collector who filed a lien at the time it sent a demand letter, in conformity with Georgia law, did not violate the act. The court also held that a debt collector has no obligation under the act to stop a clerk's office from recording a lien if a debtor requests verification of the debt after the collector mails the lien to the clerk for filing.



Tuesday, June 22, 2004
 
Mail Call
A reader recently wrote in to ask me about some general appellate principles. Here are the questions, slightly reordered for space purposes:

If the State Supreme Court has held that an appellate court cannot rule on issues which were not raised at trial, how does that square with their statement that an appellate court can also address any item which may affect the case? Would this be limited to constitutional issues and fundamental errors?

In addition, the Second District recently dropped a footnote in Smith v. State, 29 Fla. L. Weekly D1295 (Fla. 2d DCA May 28, 2004) which reads:

Because Smith's case must be retried, we mention another aspect of Smith's trial that was not argued in the briefs filed in this appeal. The prosecutors played for the jury the audiotapes of two lengthy interviews with Smith by sheriff's deputies. Upon retrial, if the State again seeks admission of these tape-recorded interviews into evidence, we suggest that the trial court consider whether some statements by Smith or the interrogating officers or both should be redacted. See §§ 90.403, 90.801-.802; Martinez v. State, 761 So. 2d 1074, 1079 (Fla. 2000); Worden v. State, 603 So. 2d 581, 583 (Fla. 2d DCA 1992).

Smith at D1302, n.5.
[I]f appellate courts in general will not address an issue raised for the first time on appeal, how can the Second District address something that wasn't even raised or briefed to them? Could it be distinguished on the basis that it was 1) dropped in a footnote and was not part of the ruling; 2) only a 'suggestion' to the trial court and not an order; and 3) couched as something the trial court should 'consider' as opposed to an error which required correcting?
And here are my answers:

The idea that appellate courts cannot rule on issues not raised at trial is a prudential one that is based on the dominant function of the appellate courts: decisional error-checking. If the appellant said nothing about an issue to the trial court, then the trial court can hardly be said to have decided that issue adverse to the appellant, so there's really no decision to appeal. The exception is, of course, fundamental error -- an event unlawful in substance or process that bears so much on the notion of justice that the result in the case cannot be accepted as just simply because such a foul event occurred. Courts can address fundamental error for the first time on appeal, but, relatively speaking, very few things qualify as fundamental error. Some constitutional errors certainly do.

So how does this square with the idea that an appellate court can address any item that affects a case once the court's jurisdiction is invoked? Well, this latter proposition is quite different. It stems from the notion that, on some occasions, an appellate court's jurisdiction is invoked only by a particular issue, such as where the Florida Supreme Court's jurisdiction is triggered by, say, a constitutional issue. The state supreme court has long held that, once it has a case for some purpose, it can decide any issue presented by the case, if the court chooses to do so. (I'll note, parenthetically, that as stated the principle seems too broad: for instance, district courts of appeal hearing interlocutory appeals under Rule 9.130 steadfastly reject their ability to consider matters other than the appealable issue.) This is by no means the same as saying the court can address issues never previously raised in the case. The two sets of principles can thus work together: even if the supreme court's jurisdiction is triggered by one issue, the court has the ability to decide other issues presented by the case, so long as they are preserved for review or constitute fundamental error.

As for the Second District's footnoted comments, your second and third comments are appropriate. The appellate court did not make a decision, but the court did direct the lower court's attention to a particular issue. Why? Probably because it was a criminal case. In the criminal justice system, once an unpreserved issue reaches a certain level, which can be less than the level of fundamental error, it or the error of not raising it may form a basis for reversing the conviction or sentence at some future point, and a lot of work may be required to posture the case so that the issue may be addressed on its merits. The earlier the matter is directly addressed by the courts, the earlier justice can be obtained.

 
Engle
If you are interested in class actions, or tobacco litigation, or appeals in general, you may wish to follow the briefing in the Florida Supreme Court in the giant Engle class action appeal. The class representatives recently filed their initial brief, and you can read it here.

You may recall that the class won a punitive damages judgment of approximately $145 billion in the trial court -- the largest judgment in history -- but on appeal the Third District reversed based on numerous grounds and ordered the class decertified. You can read the Third District's decision here.

 
Questions, questions
Here is an interesting case involving judicial estoppel. An employee injured on the job not only recovered workers' compensation payments for a work-related accidental injury but brought a successful (and, it appears, ultimately uncontested) claim for additional benefits. Subsequently, the worker filed a tort suit against the employer, claiming the employer's actions were substantially certain to cause injury or death.

Should the worker be judicially estopped from pursuing the tort claim, having been successful in receiving additional benefits based on the notion that the injury was the result of an accident? According to the cases cited in this decision from the First District, states are split in answering this question. The First District answered it in the affirmative, holding that an estoppel exists, but the court certified the following to the Florida Supreme Court as a question of great public importance:

MAY AN EMPLOYEE RECEIVING WORKERS' COMPENSATION BENEFITS LITIGATE ENTITLEMENT TO ADDITIONAL BENEFITS THEN, HAVING OBTAINED AN AWARD OF THE ADDITIONAL WORKERS' COMPENSATION BENEFITS, BRING SUIT IN CIRCUIT COURT FOR THE PERSONAL INJURIES SUSTAINED ON THE JOB THAT WERE THE BASIS FOR THE AWARD?

 
First District: Sanctioned Appeal
This decision from the First District imposes sanctions on appellate counsel. The case might serve as a reminder to appellate lawyers that they should know whether certain orders are appealable, and more importantly they should not be unresponsive, and surely not circuitous, when faced with an order to show cause.



Monday, June 21, 2004
 
Bathing Suits
Remember the green or yellow or red flags that could be seen on Florida's beaches, letting would-be swimmers know whether it was safe, risky, or dangerous to enter the water? They won't be found any longer on state park beaches without lifeguards, on the theory that it's better to have no flag than the wrong flag, and without lifeguards present, changing the flags in a timely fashion is too difficult.

That's one way to look at, as presented in this story from the AP. Another way would be to look at the lawsuit mentioned in the story -- a man dove into riptide-filled waters to save a struggling couple despite red flags and wound up drowning himself, and his family sued the state for providing inadequate warnings -- and wonder if the Florida Legislature's calculus in abandoning the flag system was not as simple as: say something, get sued for saying it wrong; say nothing, avoid suit.

So where there are lifeguards, the state will rely on them to protect swimmers, and the flags will fly, too. Where there are no lifeguards, however, we will now have nothing.

Somebody call Overlawyered.com.

 
Dare To Go Bare
If you are interested in a look at some doctors' perspective of the medical malpractice situation in Florida, including why some choose to "go bare" and not carry malpractice insurance, check out this story from yesterday's St. Pete Times.

One doctor mentioned in the story reported that his premiums had reached $95,000 for $250,000 in coverage -- and he had never had a judgment against him or settled a case. That does not mean he has never had suits filed against him, or that it did not cost some insurer good money to defend any such claims, but if such claims were filed, he apparently won them.

 
Second District: Cracked Front View
Can you be pulled over by the police for having a crack in your front windshield? Does it depend how big the crack is, or where it is? Well, in this case, the Second District held that all cracks in windshields do not violate Florida law, only ones that block the driver's view or otherwise place the car in an unsafe condition that endangers persons or property. Unless one of these circumstances exists, law enforcement has no basis to stop a vehicle based on the condition of its windshield. Judge Whatley dissented and would apparently have held that any cracked windshield is a violation of Florida law.

 
Questions, questions
In the second half of this opinion, the Second District found itself unsure about its offer of judgment case law where two defendants are involved, one of which is variously liable for the other's conduct. The court certified the following to the Supreme Court of Florida as a question of great public importance:

PURSUANT TO SECTION 768.79, FLORIDA STATUTES (2001), AND FLORIDA RULE OF CIVIL PROCEDURE 1.442, MAY A SINGLE DEFENDANT WHO MAY BE JOINTLY AND SEVERALLY LIABLE WITH ONE OR MORE CODEFENDANTS OFFER TO SETTLE A SINGLE PLAINTIFF'S CLAIM CONDITIONED UPON THE DISMISSAL OF CLAIMS AGAINST ALL DEFENDANTS?

 
Second District: Prejudgment Interest
Those interested in whether prejudgment interest may be raised for the first time in a contract case after the jury returns its verdict should check out the first half of this decision from the Second District.

 
Schiavo News
For those following the nuances of the Terri Schiavo saga, some noteable events are in the works. First up, Governor Bush's hand-picked lead attorney, private sector lawyer Ken Connor, has a scheduling conflict with the Florida Supreme Court's selected oral argument date of August 31. It seems Connor is likely to be in a Mississippi trial on that date, where he will serve as lead counsel for a plaintiff in a suit against a nursing home. You can read the motion to continue the oral argument here.

A couple of people have asked whether that sort of conflict qualifies as the sort of "extreme hardship" that the court referenced in its scheduling order (available here) as necessary to continue the oral argument date. Well, that is up to the court, but rescheduling in a situation like this would seem routine.

Of a more substantive nature, the Governor's motion to stay the appeal in the Second District has been transferred to the supreme court, as explained in this order. You can read that motion here and Michael Schiavo's opposition here.

The motion to stay is based on a pending petition that the Schindlers are pursuing before Judge Greer -- a petition for a writ of quo warranto. What's that? Quo warranto proceedings are inquiry proceedings wherein a court determines an individual's right to hold public office or whether a public officer may exercise a right or privilege derived from the state. From their petition, available here, it appears that the Schindlers are challenging Michael Schiavo's right to serve as Terri's guardian. They claim that he failed to file guardianship reports on time or at all and as a result is ineligible to serve. In his written response (available at the end of this document), Michael seems to imply that he received extensions of time to file his reports, says they have now all been filed, challenges the use of quo warranto proceedings for a guardianship matter, and argues that the writ is in all events inappropriate under the circumstances of the case.

The quo warranto issue is before Judge Greer in the guardianship case, not the separate constitutional challenge case that was before Judge Baird and is now on appeal. Governor Bush's motion to stay the constitutional challenge is based on his argument that Michael Schiavo's standing to challenge the constitutionality of "Terri's Law" may be lost if the Schindlers succeed.

If the motion to stay is granted, the delay may be considerable, since whatever decision Judge Greer makes will undoubtedly be appealed to the Second District.



Friday, June 18, 2004
 
Friday Florida Law Trivia Answer
Skiing under the influence is a crime in Florida according to this statute. This statute provides that drunk skiing is a second degree misdemeanor.

Please have a safe weekend, and please do not violate this law.

 
Friday Florida Law Trivia!
We all know that driving a car under the influence is against the law. And most of us who live in Florida know that boating under the influence is against the law, too. But, is water skiing under the influence against the law?

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

 
Rush News
I had to attend a hearing in Tampa yesterday, and while driving across Tampa Bay's Howard Frankland bridge, I tuned in to Rush Limbaugh's program. He was talking about the case he has pending in the Fourth District, and he was insisting that a case decided the day before by the Third District -- this one -- strongly supported his position.

Now, Rush recited the facts from the Third District's case and its holding. But does the case really help him?

I'll suggest that the case cuts both ways. It can be read to support Rush's position that investigators cannot simply use a search warrant to seize medical records without complying with the procedures laid out in section 395.3025(4)(d). But the case can also be read to support a fallback position asserted by the state -- that even if section 395.3025 applies, the state acted with good faith in how it obtained the records and received court permission to review them, or at least that a hearing on that issue should still be held.

 
Third District: Client, Know Thy Lawyer; Lawyer...
Here is a case that leads you to wonder. In it, a company sued its lawyers for malpractice after losing an indemnification case. The lawyers won on a summary judgment, and on appeal the Third District affirmed the judgment in the lawerys' favor, but not because the summary judgment was correctly entered. The court never reached that issue. Instead, the court agreed with the lawyers' cross-appeal that the trial court erred in not dismissing the case for failure to prosecute. Sounds like a good win for the old lawyers...

 
Fourth District: Clarification on Fees For Coverage By Estoppel
On Wednesday, the Fourth District clarified an earlier opinion concerning attorney's fee awards under section 627.428 when a plaintiff is pursuing a theory of coverage by estoppel. The prior opinion stated that the plaintiff in the case could not receive fees because it was seeking to recover under an estoppel theory, not "under the policy" as the statute requires. The clarified opinion, however, explains instead that whether the plaintiff can be entitled to recover fees turns, in part, on whether the plaintiff was actually an insured under the policy. The statute permits fees to insureds who prevail against insurers.

In the case before the court, no coverage existed because the plaintiff did not qualify as an insured for purposes of the underlying suit. Thus, even though the plaintiff could pursue coverage under an estoppel theory, the plaintiff was not an insured and, even if it prevailed, could not recover fees under section 627.428.

 
Third District: Ineffective Assistance
If you are a real estate appraiser facing disciplinary proceedings before the state administrative agency that governs you, and gaffes by your lawyer lead to you being disciplined, can you overturn the result on grounds you received ineffective assistance of counsel? Nope, said the Third District in this case.

 
Third District: Power Company Liability
Recent case law says that when a power company takes on the responsibility of maintaining street lights, it must do so reasonably and can be liable to persons injured as a result of unreasonable maintenance. What if a person is injured in a parking lot next to a street with a light out? That is not the power company's responsibility, said the Third District in this case, unless the power company affirmatively undertook a duty to light the parking lot, too.

 
Second District: Accident Reconstructionists
Looking to use an accident reconstructionist at trial, or to object to one? Check out this decision from the Second District, which explains how the propriety of admitting such testimony turns on the difficulties of the reconstruction process.

 
Third District: Phoning It In
Let's start with an account that sounds like something I'd hear in a "Criminals Is Stupid" radio morning show segment. In this case, a man called 911 to report that his tenant was yelling and banging on his car. Officers arrived at the man's home to check out the incident. They found his door wide open, but knocks at the door produced no response. Next, they checked out the adjoining home, where the tenant lived, and found the tenant home but no disturbance. The officers then returned to the caller's home, the door to which was still open. They knocked again, and, fearing the man may be injured, entered, where they found marijuana in pots and they spotted the man in his backyard, with more marijuana in his hands.

The case concerned the man's efforts to suppress the contraband. The Third District reversed a suppression order, finding the entry and seizure constitutional.

 
Happy Friday
'Tis Friday again, which means that Mr. Hunter Carroll returns to Abstract Appeal to offer our weekly Florida law trivia question. Before he does, though, I want to cover a few interesting cases from the last couple of days.



Thursday, June 17, 2004
 
Eleventh Circuit: Satellite Signal Theft
I know I am behind on talking about some interesting cases out of the Eleventh Circuit, and that I need to devote some good time to this to catch up, but here's a quick post on a case from earlier this week that is just real interesting. The court held that the federal wiretap act, and specifically 18 U.S.C. § 2520(a), does not give DirectTV a private right of action to sue persons who illegally possess devices that decrypt the company's encrypted satellite television signals.

You can read the court's decision here. The court's legal analysis is very interesting, and the court notes that while district courts nationally have split over the private right of action issue, this is the first case to decide this issue at the circuit level. The decision's practical effect on the circuit's dockets is also noteworthy: the court notes that DirectTV has approximately 1800 similar cases pending in Florida's federal district courts alone. Finally, it might be mentioned that the decision was written by the circuit's newest member: Judge William Pryor.

 
Not So Schiavo News
A reader sent me a post this morning from a message board run by a Maryland newspaper. Trying to develop a conspiracy-like ulterior motive for my disapproval of the Internet petition to impeach Judge Greer (remember this post and this one?), the poster commented that I work with Carlton Fields, that CF is "a big online advertiser" with the St. Petersburg Times, and that the Times "has been biased toward the side of protecting and coddling Judge Greer since 2000."

Wow. To my knowledge, CF does not "advertise" in any general media, including newspapers like the St. Pete Times. I suppose we run job ads in the classified section once in a while, but no different from any other employer in town. Probably less so.

What the poster does not understand is that I have no ulterior motives for anything posted on this site. I do this in my spare time (read: time many say would be better spent sleeping, working, enjoying life, etc.) simply because I enjoy Florida law. I am not out to help, or hurt, anyone. As for the Schiavo case in particular, I have never met or even spoken with anyone involved in the case, including Judge Greer. My disapproval of the Internet petition to have him impeached was based on two things: my appreciation for Judge Greer's very good reputation in the legal community, and my legal understanding that impeaching a judge based on his rulings -- especially rulings that have been affirmed or not appealed at all -- is nonsensical and contrary to the fundamental purposes of impeachment.

 
Schiavo News
I previously commented that I would not take any bets on whether the Florida Supreme Court would immediately hear the constitutional challenge to "Terri's Law." (Such as in this post.) The reason for my uncertainty was that the supreme court had complete discretion in whether to accept the certification: they could have decided that the case was not of such great public importance, or even if it is they could have decided that they just did not want to hear it, and sent it back to the Second District.

So it was no surprise to see a 4-3 vote in favor of keeping the case.

Practically speaking, the four-justice majority may have focused on its inevitable role in the case, as defined by Article V, section 3(b) of the Florida Constitution: if the case had been sent back to the Second District and that court had affirmed Judge Baird's ruling that Terri's Law is unconstitutional, then the state supreme court would have been required to review that decision; if the Second District had reversed Judge Baird's ruling, finding the law constitutional, then the supreme court would have had discretion to choose whether to review that decision. So the high court could have reviewed the case in either event, and certainly the more one believes the law is probably unconstitutional, the more one must acknowledge that supreme court review may be inevitable.

Is that line of thinking what produced the 4-3 vote? I doubt it. Sure, the justices were aware of the possibility that sending the case back to the Second District might be no more than a temporary reprieve from the matter, but that happens all of the time, with every constitutional challenge to a statute. Certifications such as the one here are rare, and the supreme court's acceptance of such certifications is even rarer still.

My guess is that the four justices voting to keep the case were ultimately persuaded by how much time has passed since the judicial effort to determine Terri's fate got underway, and how many judicial decisions have been required during that period. It has been six years since Michael Schiavo asked the circuit court to determine whether Terri would choose to continue receiving her feeding tube, and there have been many, many decisions at both the trial and appellate levels, with no finality yet in any direction. Another factor may have been the extraordinary nature of the events that led to Terri's Law being passed -- events at the highest levels of state government. Why not resolve the constitutional challenge at the judiciary's highest level at the earliest opportunity? Just a guess.



Wednesday, June 16, 2004
 
Schiavo News
The Florida Supreme Court has ruled that it will decide the constitutionality of "Terri's Law." In this order, issued today, a 4-3 divided court decided that it would accept the Second District's certification of the case as a matter of great public importance requiring immediate resolution by the high court.

As you probably know, Governor Bush is appealing Judge Baird's decision that the law, which authorized the Governor to reinsert Terri's feeding tube, is unconstitutional.

More on this later tonight.

 
Grill Kill
If you live in a condo, townhome, or apartment and have any inclination to grill in the vicinity of your home, you may be interested in this story in today's Palm Beach Post. It discusses the regulations regarding grilling in and around these multi-family dwellings, including new rules that will prohibit even charcoal grilling. The story is never clear about whether the regulations being discussed are Palm Beach County fire codes or statewide. I hope to find this out.

 
First District: Statements by Attorneys
Just a reminder here from the First District: statements made by lawyers not under oath are not evidence. Nice win, Bob.

 
First District: DNA Database Problems
Many folks know that the Florida Department of Law Enforcement maintains a DNA database. But do you know that, last Thursday, in this case, the First District agreed with a criminal defendant's argument that the state failed to show how using that database to compute statistical probabilities for DNA results comported with the Frye test for the admissibility of scientific evidence? So, until some problems with FDLE's database are cleared up, it is effectively disapproved for statistical analysis purposes.

 
Med Mal Woes
Today's Sun-Sentinel has this story about a South Florida plastic surgery center that's declared bankruptcy in response to hefty group of malpractice claims.

I found the story interesting because it refers to former patients' claims that the center is liable for the actions of doctors practicing there. Now, I'm not saying the center is not liable in that way, but I will note that, historically, doctors have been considered independent from hospitals where they practice, and thus a hospital was generally not liable for a doctor's malpractice. With the new limits on suits against doctors, though, it seems inevitable that plaintiffs' lawyers will be trying new and novel theories to spread malpractice liability to doctors' employing facilities -- whether medical centers, hospitals, clinics, or something else. This area of the law will be interesting to track over the coming years.

 
Updated!
I finally took some time tonight to do a little tweaking to the main page template. Those with really good recollections may notice that the left column is a bit reorganized, with some new links, including one to the Florida Bar's Appellate Practice Section's web page. I also made a number of updates to the links in the right column, adding a number of new GeoBlawgs, making the "Good Blawgs and Blogs" section merely about blawgs, and creating a new list of Florida blogs. Some good Florida bloggers have been linking Abstract Appeal, and as I spot you all I will gratefully add you to the BlogBook.



Tuesday, June 15, 2004
 
Drinking Thoughts
The AP has a story out this afternoon, available here, about how three homeless men are challenging the City of Jacksonville's public drinking law. According to the story, the law allegedly suffers from a number of defects, including selective enforcement, as shown by the city's willingness to create an "entertainment zone" around the time of the Super Bowl that will permit all sorts of folks (read: not homeless) to drink to their hearts' content in the same park where these men were arrested.

The legal profession: uncreative people need not apply.

 
Second District: Jimmy Ryce
The list of legal quandaries over the Jimmy Ryce Act, Florida's law regarding the civil commitment of sexual offenders, does not seem to be getting any shorter. On Friday, in this case, the Second District certified the following to the Florida Supreme Court as a question of great public importance:

MAY AN INDIVIDUAL BE COMMITTED UNDER THE JIMMY RYCE ACT IN THE ABSENCE OF A JURY INSTRUCTION THAT THE STATE MUST PROVE THAT THE INDIVIDUAL HAS SERIOUS DIFFICULTY IN CONTROLLING HIS OR HER DANGEROUS BEHAVIOR?
The same court previously certified the same question in another case, back in August of last year, but since it has been awhile, I thought I'd repost it here on the blog.

 
Second District: The Other ADA
It is rare to spot a Florida appellate decision involving preemption under the Airline Deregulation Act, but here's one from the Second District.

 
Abstract Pause
The last few days have been busy ones. Several appeals have me hopping, almost literally, and over the weekend I had the pleasure of quick jaunt to Chicago for a meeting of the Council of Appellate Lawyers. The trip was informative not only professionally but spiritually. You see, I learned there is such a thing as a healing flight. That's right. A healing flight. And to Tampa, no less.

Southwest Airlines gives priority in boarding to passengers requiring assistance, including families with small children and persons needing wheelchairs. On the flight home, there were no less than six persons who asked to be boarded in wheelchairs. On they went. When the flight arrived in Tampa, though, and the airline crew brought six wheelchairs to the gate to help the ailing group back off the flight, only three persons used them. That's when I heard one crew member say to another, "They needed six chairs when they got on, but only three when they got off. It was a healing flight!"

A modern miracle.



Friday, June 11, 2004
 
Friday Florida Law Trivia Answer
According to this statute, a twelve-person jury is used to determine the amount of compensation due a landowner whose land is taken through eminent domain. Under Florida law, the only other time a twelve-person petit jury is impaneled is in a case involving a capital crime.

Have a wonderful and safe weekend.

 
Friday Florida Law Trivia!
In an eminent domain case, how many jurors under Florida law must be impaneled to determine the amount of compensation due a landowner whose land is being taken?

The answer will be posted later this afternoon.

 
Supreme Court: Governmental Duties
When a governmental entity in Florida has an obligation to enforce the laws, does it have a duty to do so reasonably? How about a bit more context: does a government agency charged with emergency response services have a general duty to respond reasonably? Not under the circumstances of this case decided yesterday by the Florida Supreme Court.

The case involved a disabled truck stopped on a stretch of highway in the middle of the night with no lights, markers, or flares to guide traffic around it. A passerby called 911, which alerted the Florida Highway Patrol (FHP), but FHP mistakenly never logged the call and never dispatched an officer to the scene. When two persons died after their vehicle slammed into the stopped truck, their estates sued FHP for wrongful death, asserting that the failure to dispatch officers to the scene caused the tragedy.

The issue before the supreme court was the threshold one of duty: whether FHP owes a general duty to the public to act reasonably to avoid undue harm to others once notified of a dangerous traffic situation. Five justices said no, including Chief Justice Anstead, who, joined by Justice Wells, filed a concurrence fully agreeing with the four-justice per curiam majority and reciting some of the liability horribles that a contrary decision could bring. Justice Pariente, joined by Justice Quince, dissented. Justice Pariente would have relied on the foreseeability of the accident to determine that FHP owed a duty to the decedents.

Comparing the philosophies of the majority and Justice Pariente is extremely interesting, and this case serves as a good vehicle for bringing to the surface some rather fundamental views on the jurisprudential expansion of tort duties. Those whose practice or business involves such questions of duty should take note, keeping in mind the governmental aspect of the case.

This case also reminds me of a fascinating article I recently read in the Florida Bar Journal. The article severely criticizes the Florida Supreme Court for its somewhat entrenched and unique view, rejected by courts and scholars nationally, that foreseeability of harm alone can be a basis for the recognition of a duty of care.

You can read that article here. If you are looking for an interesting and productive way to spend some time this weekend, grab a copy of it, and a copy of this recent decision, and ponder away. It will be time well spent.

 
Fourth District: Estates Question
I do not remember the last time the Florida Supreme Court released a case involving estates law. Maybe the relative novelity will thus prompt the court to answer the following question, which the Fourth District certified to be of great public importance in this case:

WHERE A DECEDENT IS NOT SURVIVED BY A SPOUSE OR ANY MINOR CHILDREN, DOES DECEDENT'S HOMESTEAD PROPERTY, WHEN NOT SPECIFICALLY DEVISED, PASS TO GENERAL DEVISEES BEFORE RESIDUARY DEVISEES IN ACCORDANCE WITH SECTION 733.805, FLORIDA STATUTES?

 
Fourth District: Rehearing a PCA
For those who think motions to rehear a per curiam affirmed opinion never work, this decision from the Fourth District shows that not to be true. They sometimes work, though that may not get you anywhere.

 
Fourth District: Workers' Compensation Immunity
For the latest case on whether an employer's conduct involved a substantial certainty of injury, sufficient to overcome the employer's workers' compensation immunity, check out this decision from the Fourth District.

 
Fourth District: Settlement Proposals
The latest appellate decision on the validity of an unapportioned offer of judgment is available here from the Fourth District. Read it if you like, or just remember: apportion, apportion, apportion.



Thursday, June 10, 2004
 
Fourth District: Jimmy Ryce
If you represent a person charged with a crime and with that crime being sexually motivated under the terms of the Jimmy Ryce Act, you will want to check out footnote 3 of this opinion from the Fourth District, which gives a suggestion on how to utilize a two-part verdict form. Then again, you may wish to read the entire decision, majority and dissent, which resulted in an affirmance of a trial court's refusal to separate the conviction and sexual predator stages. Ditto if you're a Florida legislator...

 
Second District: Long-Distance Paternity
Can a Florida circuit court make a paternity determination regarding an out-of-state person over whom the court lacks personal jurisdiction?

Come on. You know.

No.

 
Schiavo News
You may recall from this earlier post that I've questioned the accuracy of a line found in recent AP stories on the Schiavo case. (They're offline now, but you can see the line's effect at the end of this story). Specifically, I thought the news service goofed in reporting that the Second District granted a motion by Michael Schiavo's attorneys to send the case to the Florida Supreme Court. I thought that instead the district court passed the case up the appellate ladder on its own motion and that Michael's attorneys simply agreed with that course.

I am happy to say I was correct. The Second District first addressed the "pass through" issue when it issued an order to show cause why the case should not be certified to the state supreme court. I have finally seen a copy of that order -- it is attached at the end of this document -- and it clearly shows that the court raised the issue, not Michael Schiavo.

If only the AP read this blog...

 
Hiding In Plain View
Last year, a Florida trial court rejected a Muslim woman's claim that a state statute requiring her to expose her face for a driver's license photo violates her First Amendment rights. (I presume we're talking about the right to free exercise of religion.) This story from the AP explains how the Fifth District held oral arguments yesterday in the woman's appeal.

The story mentions a rather amazing concession by the assistant attorney general who argued the case: the state would be willing to accommodate the woman's beliefs during traffic stops by having female officers involved. Does that mean the state agrees that if the religious beliefs of a person stopped for a traffic offense allow only only men or only women to see his or her face, then the state may have to oblige those beliefs in the course of conducting the stop? Wow.

When the court issues its decision in this case, it will be national news.

 
Fourth District: Nursing Home Arbitration Agreements
If your practice involves nursing homes or arbitration agreements, or both, you will likely be very interested in this decision from the Fourth District. The case concerns whether an arbitration agreement is enforceable where it limits a would-be plaintiff's ability to recover statutory remedies.

In this particular case, the nursing home and the decedent entered into an arbitration agreement that adopted the rules of the National Health Lawyers Association. Those rules limit the recovery of actual or punitive damages to where intentional or reckless conduct is proven by clear and convincing evidence. Those rules also equally divide fees and expenses among the parties unless the arbitrator finds good cause to do otherwise. Both of these aspects of the NHLA rules differ from a nursing home resident's rights under chapter 400.

The trial court had found the agreement unenforceable based on its limitations on the plaintiff's statutory rights. The Fourth District reversed that decision, holding that there is neither a common law nor a statutory basis to disregard an arbitration agreement merely because it involves a waiver of statutory rights and remedies. The Fourth District concluded that in the absence of unconscionability (an issue still to be addressed in the case), the arbitration agreement was enforceable.

These issues are fascinating, and they can be a bit intricate. Watch for more on this subject. It's hot.

 
Questions, questions
Florida law, as announced by the state supreme court in a case called I.T. v. State, directs that where the evidence is insufficient to affirm a given criminal conviction but would support conviction of a permissive lesser included offense, the appellate court is to reverse and remand for entry of judgment on the lesser included offense. Now, permissive lesser included offenses include at least one element that the charged offense does not contain, and thus the appellate court is required to order judgment entered for a crime containing at least one element never found by a jury. That disturbed the First District in this case, and so the district court certified the following to the Florida Supreme Court as a question of great public importance:

Does the procedure prescribed in I.T. v. State deny defendants their federal constitutional rights to trial by jury and proof beyond a reasonable doubt?



Wednesday, June 09, 2004
 
Fifth District: Then Again...
My vote for last week's most interesting Florida case is this one. It involved two unhappy parents' lawsuit against a host of defendants for misrepresenting the quality of education that their son would receive if they moved to Celebration, Florida -- otherwise known as the town The Mouse built. You may recall that the parents sued not only the town's builder but the Osceola County School Board, Harvard University, Stetson University, Johns Hopkins University, and a host of others.

You may also recall that, in this decision issued last December, the Fifth District reversed a trial court's dismissal order and determined that the parents stated a cause of action for fraudulent and negligent misrepresentations, based on allegations that some defendants falsely touted a "best practices" teaching curriculum. Judge Torpy dissented on grounds that the plaintiffs' vague claims about not properly educating their son were no more than impermissible claims for educational malpractice.

Well, in the new opinion released last Friday, the former majority rethought its position on the fraud issue. The new opinion addressed the fraud claim much as the former dissent did, holding that the allegations of fraud were not sufficiently specific to show actual fraud. The now-unanimous opinion concluded that the plaintiffs should be given leave to amend but that they must plead exactly what was represented to them, how those representations were false when made, and how those representations caused damage to the plaintiffs.

That's a huge change in the case's result, and a very good result for the state's educators.

 
But wait...
there's more...

 
Second District: Villanti-isms
I'm not sure "Villanti-isms" works (Villantiisms?), but Judge Villanti has been catching my attention lately with his lightly caustic case descriptions. His latest offering can be found here, where he introduced a criminal case in this way:

Wearing underwear on his head as a disguise, Berube rode his bicycle to the Totally Convenient Food Mart where he used a pellet gun to rob the store. Notwithstanding, a jury of his peers saw through this disguise and convicted him.
Nice. The case has more of the same if you read on.

 
Fifth District: Administrative Law
If you are interested in administrative law, this decision from the Fifth District will be right up your alley. The case considers whether an administrative law judge can award attorney's fees under section 120.595 after a notice of dismissal is filed, whether the agency has the jurisdiction to correct an erroneous decision by the ALJ on the first question, and whether the district court has that jurisdiction on appeal from the agency's decision. Good stuff. The answers are yes, no, and yes -- the last one perhaps being of interest to appellate lawyers in general, as the district court applied to itself the principle that once an appellate court has jurisdiction over a case, it can decide any issue that affects the case.

 
First District: Shotgun, Reverse
It's decisions like this one from the First District that leave appellate lawyers in a perpetual quandary: where a trial is filled with improper comments by opposing counsel, do you make a shotgun argument for cumulative error? Often those arguments do not work, but once in a while, thankfully, they do. This case is a good example of the latter. The plaintiff's lawyer's repeated misconduct resulted in a new trial.

 
Fourth District: Attorney's Fee Motions
Another district agrees: affidavits regarding time spent are not required to be submitted with a motion for attorney's fees. Read about it in this decision from the Fourth District.

 
Second District: Jimmy Ryce Explored
As a general rule, courts do not like to legislate. Or at least they shouldn't. Still, as this decision from the Second District shows, the incomplete procedural details surrounding the Jimmy Ryce Act (Florida's sexual predator law) sometimes force the courts to craft legislative-like solutions to real problems in that law's application.

 
Back In Blog
Don't let anyone kid you. The practice of law is a full-time job -- maybe two or three, depending on the week. This past week has been most consuming, and I haven't yet been able to talk about some of the very interesting cases that came down the pike last week. Until now.



Monday, June 07, 2004
 
Ridiculous?
My favorite legal news tidbit from the weekend involves this editorial from my hometown paper, the St. Pete Times. In the piece, the editorial board railed against this law, which allows only limited groups of people the ability to copy documents concerning Florida's voter information databases. Anyone can access the documents (sans social security numbers and the like), but copying is basically limited to government entities, candidates, PACs, and officeholders.

With news media companies not being on the list, the Times is naturally unhappy with the law. And not just a little. The Times considers the law unconstitutional, and that's really the point of the editorial. The piece references a lawsuit by CNN that challenges the law under equal protection principles. The paper seems to support CNN's position and goes even further, saying the law was also passed in violation of Florida's single-subject requirement. The Times ultimately opines that the State's defense of CNN's suit "makes little sense and appears to be an irrational justification for an unjustifiable law." Ouch.

Let's watch and see what happens with this law as we head towards the 2004 elections. Anyone want to hazard a guess?

By the way, if you read the editorial online, you're missing something. The first sentence begins, "That is about the most charitable word to describe a state law preventing the news media from having access to Florida's voter purge list." What word? The heading for the piece is "An Unjustifiable Law," but "unjustifiable" isn't the word they mean. The online version of the editorial leaves out the first sentence found in the print version: "Ridiculous."

 
Schiavo News
Well, I'm sure most persons interested in the Terri Schiavo saga have heard by now that, on Friday, Judge Greer entered an order that restored the Schindlers' ability to visit with Terri. You can read the order here, thanks to the folks at Terri's Fight, and you can read about the order in this story from the weekend's St. Pete Times.

For those who are only casually following this case, this most recent order was entered in the guardianship case, where Terri's parents and her husband continue to wrangle over Terri's care and her parents' ability to visit her without supervision. This order has nothing to do with the separate case involving "Terri's Law" and Michael's constitutional challenge to that law. That's a separate matter from the guardianship case.

 
There and Gone...
That about describes the weekend, which flew by way too fast. There's news to talk about, and case law from late last week. I was able this weekend to respond to most of my email, but a few folks who sent in questions over the weekend still haven't heard back from me. I'll do my best to answer those emails later today.



Friday, June 04, 2004
 
Chomp
I love the Florida law trivia questions Hunter comes up with, but I have to wonder whether there's a reason he's sneaking in his Gator plugs so long before football season arrives...

 
Friday Florida Law Trivia Answer
Under this statute, a person who uses the word "gator" or "alligator" in connection with the sale of any product derived or made from the skins of crocodilia other than a genuine alligator skin is guilty of a misdemeanor.

Florida's Attorney General apparently has opined that this statute does not apply to the sale of synthetic materials or products. See AGO 074-29 (Feb. 7, 1974). Although I have not read that opinion, I wonder if it was requested by a rabid University of Florida Gator fan who wanted to make Gator stuffed animals?

Go Gators, and have a safe and happy weekend.

 
Friday Florida Law Trivia!
May someone use the word "gator" or "alligator" in connection with a sale of any product derived or made from the skins of other crocodilia?

The answer will be posted late this afternoon.

 
Schiavo News
Over the last few days, I have received a very interesting mix of reactions to my earlier post on the Internet petition to impeach Judge Greer. Some have been very complimentary, while others have accused me of defending an indefensible judge. I appreciate the folks who took the time to ask sincere questions about the situation, rather than simply to flame me on a message board somewhere.

It's a bit frustrating that some folks do not understand that I'm not actually defending Judge Greer's rulings or the propriety of him sitting on the Schiavo case. Ultimately, my point is that those are matters that can and should be addressed not in an impeachment proceeding but through the appellate process, where the decisions are in the hands of appellate judges. As I put it in an email I sent this morning to a reader:

Impeachment is a harsh and constitutionally important matter. It is intended to be a remedy for misconduct, not for mistakes in legal decisions or for having an unpopular philosophy. Legal mistakes or misjudgments should be corrected through the appellate process, and under no circumstances should a judge be impeached based on legal rulings that have been affirmed. Since our trial judges in Florida are elected, personality issues or philosophical concerns can be addressed at the ballot box.
I encourage everyone to take an interest in the law and have an opinion on it. That's part of the purpose of this web log -- to help inform people about what's going on in Florida law. I also encourage people to trust the legal system in Florida. It is filled with fine judges at all levels, and while mistakes are made, the system almost always corrects them.

 
Abstract Pause
Where did I go? New York, actually. A quick business trip over the last two days left me unable to blog. It seems I have some catching up to do on some legal events and case law. Thank goodness for the weekend.



Wednesday, June 02, 2004
 
Bullet Train Update
The proposed constitutional amendment to derail the planned bullet train has gained enough signatures to be forwarded to the Florida Supreme Court for review. That court examines the proposal's title, scope, and ballot summary to ensure they comply with Florida's requirements for constitutional amendments.

You can read about the proposal in this story from today's Tampa Tribune.



Tuesday, June 01, 2004
 
Schiavo News
Today, the Second District entered an order sending the constitutional challenge to "Terri's Law" to the Florida Supreme Court. You can read the AP's report on the certification here. The order itself does not yet appear to be available online.

Let me try to explain what's going on. Michael Schiavo has sued Governor Bush over Terri's Law. Michael claims that Terri's Law is unconstitutional for numerous reasons, and last month, in this order, Judge Baird agreed with several of Michael's arguments. Judge Baird accordingly declared the law unconstitutional. The case was filed in the Pinellas County circuit court, and appeals from that court are generally heard by the Second District Court of Appeal, which is one of five such district courts geographically spread across Florida. Governor Bush appealed Judge Baird's decision to the Second District.

Florida's appellate rules permit a district court of appeal to send a case straight to the state supreme court when the district court believes the case to be of great public importance or to have a great effect on the proper administration of justice throughout the state. According to the AP story, the Second District today entered an order making exactly that sort of certification and citing both grounds.

Frankly, I am a bit surprised to hear that the Second District characterized the case as having a statewide effect on the proper administration of justice. As for the "great public importance" characterization, that trait is, as I have said before, like beauty -- its presence is wholly dependent on the eye of the beholder.

Importantly, while the Second District's order sends the case to the state supreme court, the high court need not keep the case. The Florida Supreme Court has complete discretion over whether to hear the case now or send it back to the Second District for a decision. In other words, the supreme court can decide that the case is not one of great public importance, or even if it is, the court can decide that it would like the Second District to decide the case at this time.

I'm not taking bets on how that turns out.

A couple more thoughts:

First, the AP story linked above indicates that the Second District's certification was the result of a motion by Michael Schiavo. I do not believe that to be correct. Instead, I believe that the Second District issued the certification on its own motion. Michael simply agreed with that course.

Second, the AP story also mentions that Governor Bush has filed a motion to halt the entire appellate process while Michael Schiavo's status as Terri's guardian is litigated in the separate guardianship case before Judge Greer. I suspect that the motion will either be denied as moot in the Second District, giving the Governor leave to refile it in the supreme court, or the motion will simply make its way to the supreme court. I also suspect that Michael Schiavo's opposition to that motion should be entertaining -- it will no doubt accuse the Governor of doing all he can to delay the final resolution of this case.

If I spot copies of these documents online, I will post links to them.

 
Schiavo News
Well, this is more opinion than news. Below is an email I received today from a reader who wanted my reaction on an Internet petition to impeach Judge Greer. My response follows.

Reader Email:
I know that something similar like this was used to get to get Governor Bush involved in the Terri Schiavo case. Now, it appears they are going about it on a different route. Would a petition of this sort carry any weight into impeaching Judge Greer? and would you care to comment on any of the 30+ transgressions?

www.petitiononline.com/ijg520/petition.html
My response:
I will comment on how sad that petition is. Judge Greer is an honorable public servant who does not deserve such treatment.

Our judicial system utilizes a system of checks through the appellate process, and the bottom line is that Judge Greer's rulings have been repeatedly affirmed on appeal. Most of what I see in that list I do not think the Schindlers have argued in court, let alone on appeal, which says much about the merits of those allegations.

Some of those allegations are so legally baseless that they are amusing.

As for the points in the list that the Schindlers have previously raised on appeal, those arguments have been rejected, which definitively resolves their merits as nonexistent. In that sense, the petition may just as well name the Second District judges who affirmed Judge Greer's decisions and the Florida Supreme Court justices who found the Second District's decisions not to be in conflict with prior precedent. Judge Greer has not been a lone wolf here -- he has made his decisions, and all sides have had, and will continue to have, every chance to challenge his findings and conclusions on appeal.

I suppose the people who authored that petition and who support it are comforted by their actions, but that does not make their allegations of error and misconduct correct. I wonder if any of those persons has a law degree, with the education and training to opine on what constitutes a violation of the law or the canons of judicial conduct. I suspect I know the answer.

I understand your comment about Governor Bush, but he did not become involved in this case because of anything similar. He became involved because numerous persons asked him to do something, and he responded to those requests by advancing the bill that eventually became "Terri's Law." I have never heard Governor Bush state that Judge Greer has violated the law or the canons of judicial conduct in any way.

To answer your question about whether this will carry any weight, I am confident the answer is no. None whatsoever.

Let me clarify that all this does not mean that I believe Judge Greer has been correct in every decision he's made in this case. What it means is that his decisions have thus far been determined by higher courts to be consistent with the law of Florida. Attacking him -- with a petition for impeachment, no less -- is simply absurd.

How very sad. Thanks for sharing it with me, though. It's good to be aware of what's going on, even if it's depressing to hear.

 
Third District: Transcript Preparation
Here's a useful case to cite in a motion requesting an extension of time based on a delay in obtaining a transcript. In this case, the Third District quashed a circuit court order granting an extension only until the date the transcript was due to be completed, holding, "It is fundamentally unfair to require a party to prepare a brief without a transcript."

 
Fourth District: Long-Arm Jurisdiction Over Insurers
Ever wonder whether Florida can exert long-arm jurisdiction over an out-of-state insurer based on an allegation that the insurer improperly failed to settle a Florida lawsuit against its insured, resulting in a Florida excess judgment? The Fourth District has the answer here.

 
Third District: Opinion Work Product
For an interesting discussion about when a party may be required to disclose opinion work product previously given to an expert witness, and how the result may be affected if the case is a criminal one, check out this decision from the Third District. The decision supercedes and expands upon an opinion the court released earlier this year.

 
Third District: Prevailing Parties
This decision from the Third District reminds us that there need not be a prevailing party in every case, at least for purposes of a prevailing-party attorney's fees provision found in a contract.

 
Good Day
I hope everyone enjoyed the holiday weekend. There are a few noteworthy cases from last week that I can still mention, and I'll get to that now.





 
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