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Saturday, July 31, 2004
Looks to me like LawFool isn't so foolish after all -- this post has a popular take on the Florida Constitution's current predicament.

I'm just glad to know I've prompted someone to read it, no matter what the resulting opinion.

Friday, July 30, 2004
Trivial Reaction
Who knew? Oh well. Yeehaw! Have a good weekend, everyone.

Friday Florida Law Trivia Answer
According to this statute, Florida's official state rodeo is the Silver Spurs Rodeo. It is held "in Osceola County for top professional cowboys and cowgirls to compete for a chance to be one of the Professional Rodeo Cowboys Association's world champions." You can learn more about the history of the Silver Spurs Rodeo here, and if you are interested in attending, it appears the 114th Silver Spurs Rodeo will be held October 14 through October 17, 2004 at Osceola Heritage Park.

Friday Florida Law Trivia!
I'm back in the saddle with this question. Hyped as "a world class sporting event" and "the largest" of its kind "east of the Mississippi River," the Florida Legislature has deemed this event to be the official sporting event of its type in Florida. To what event am I referring?

The answer will be posted this afternoon about 4:30 p.m. EDT.

Constitutional Cafeteria
Yesterday, three more citizen-sponsored proposals to amend the state constitution garnered enough voter signatures to make the November ballot.

First, we have the proposal to repeal the high speed rail constitutional amendment that voters approved in 2000. This will make for an interesting public relations battle. To read this proposal, look here.

And speaking of public relations battles, the plaintiffs' bar (would the press please stop calling them the "trial lawyers" -- trial lawyers show up for both sides of a case) got two proposals onto the ballot for their showdown with Florida's doctors: the right to review records regarding investigations of doctors proposal and the three strikes medical malpractice proposal.

Oh my. Unfortunately, there is going to be an all-out war between the doctors and the plaintiffs' bar, and I hope -- really hope -- that the major media will educate Florida's citizens about all of the proposals before election time. I'll do my best to be informative from my little corner of the blogosphere.

By the way, three other citizens initiatives have also made the ballot this year, and those are in addition to two constitutional amendments proposed by the Legislature that will also be on the ballot.

The other citizens proposals are:

-- the $6.15 and rising minimum wage proposal

-- the Miami-Dade/Broward slot machine proposal, and

-- the (doctor sponsored) attorney's fees cap in medical malpractice cases proposal

The Legislature's proposed amendments are:

-- the parental notification before a minor terminates her pregnancy proposal, and

-- the citizens initiative proposals must be submitted earlier proposal

Courting Tigger
Disney fans and naysayers may be interested in this story from today's Sun-Sentinel, which describes the upcoming sexual molestation prosecution of a Tigger-costume wearer. Disney apparently wants the costume changed (to put it nicely) so it looks not at all like Tigger during the trial. The story also contains a number of interesting factoids about the case.

Second District: Attorney Billing Records
This case involved a request for production of an attorney's billing records and an order compelling production. The Second District quashed the order and remanded for an in camera inspection of the items. Interestingly, though the court noted that no privilege log had been compiled, the decision made no mention of any waiver argument or whether anyone previously requested in camera inspection. Good.

Second District: Deposing Suspected Sexual Predators
If you're accused of being a sexually violent predator, which we all know invokes a "civil" proceeding, you have a tough row to hoe in avoiding deposition questions, as the petitioners in this case now know.

Second District: Prior Litigation
Evidence involving prior litigation is not always inadmissible in a personal injury trial. The Second District concluded that omitting testimony from prior workers' compensation litigation was reversible error in this case.

Questions, questions
The First District has joined the Second and Fourth Districts in certifying the following to the Florida Supreme Court as a question of great public importance:

Three makes a chorus, no?

Eleventh Circuit: Asylum
If you've wondered what it takes for an alien to qualify for asylum in the U.S., this decision from the Eleventh Circuit will give you a brief look.

Eleventh Circuit: Criminal Procedure
Federal prosecutors got a win yesterday in this decision by the Eleventh Circuit, which reminds federal district courts that there is no summary judgment procedure in criminal cases. Why they wanted this win isn't so clear, though. Maybe the district court will understand.

Eleventh Circuit: Forum Selection Clauses
If you like procedural issues, then this is an interesting decision released yesterday by the Eleventh Circuit. Two parties had a contract providing that they "shall" submit "to the jurisdiction of Broward County, Florida." The plaintiff sued on the contract in state court, Broward of course, and the defendant removed the case to federal court, where it was assigned to the Southern District's Miami division. The district court then granted the plaintiff's motion to remand the case to state court.

The Eleventh Circuit reversed. The court found the forum selection clause was mandatory but ambiguous: the Southern District has a division in Broward County. Since the plaintiff had been the drafter, the court construed the clause against the plaintiff and held jurisdiction in the Southern District was proper. (The court noted that venue within the district was not at issue in the appeal.)

Note that who sued whom appears to have been dispositive here, in light of the contract principle of strictly construing a contract against its drafter.

Thursday, July 29, 2004
Eleventh Circuit: No Constitutional Right To Sell Sexual Devices
Something tells me I could spend the rest of the morning grabbing newspaper links to this decision released yesterday by the Eleventh Circuit. The court heard the State of Alabama's appeal concerning a law that banned the sale of "any device designed or marketed as useful primarily for the stimulation of human genital organs for any thing of pecuniary value." The American Civil Liberties Union challenged the ban under what the group argued to be a constitutional right to sexual privacy.

The court divided in its decision, with a majority rejecting the notion (accepted by the district court) that the Constitution invalidates the state proscription. The majority and dissenting opinions each contain some interesting analyses. I can't reproduce their substance here, but I can pass along the opinions' quote battle, which invoked two giants on whose shoulders the judiciary now stands:

In her dissent, Judge Barkett opened with this passage:

This case is not, as the majority's demeaning and dismissive analysis suggests, about sex or about sexual devices. It is about the tradition of American citizens from the inception of our democracy to value the constitutionally protected right to be left alone in the privacy of their bedrooms and personal relationships. As Justice Brandeis stated in the now famous words of his dissent in Olmstead v. United States, 277 U.S. 438 (1928), when "[t]he makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness . . . [t]hey conferred, as against the government, the right to be let alone–the most comprehensive of rights and the right most valued by civilized men." 277 U.S. at 478 (Brandeis, J., dissenting) overruled by Berger v. State of New York, 388 U.S. 41 (1967); Katz v. United States, 389 U.S. 347 (1967).
At the conclusion of the majority opinion, Judge Birch responded:

The dissent eloquently quotes Justice Brandeis in its opening passages. We find merit in the wisdom of Justice Felix Frankfurter in his concurring opinion in Dennis v. United States, 341 U.S. 494, 525, 71 S. Ct. 857, 875 (1951), when he observed:

Courts are not representative bodies. They are not designed to be a good reflex of a democratic society. ... Their essential quality is detachment, founded in independence. History teaches that the independence of the judiciary is jeopardized when courts become embroiled in the passions of the day and assume primary responsibility in choosing between competing political, economic and social pressures.
Well -- one more quote. It's the one that I assume will be reproduced in many papers today, and it comes from the end of the majority opinion, just before the excerpt quoted above:

Hunting expeditions that seek trophy game in the fundamental-rights forest must heed the maxim "look before you shoot." Such excursions, if embarked upon recklessly, endanger the very ecosystem in which such liberties thrive—our republican democracy. Once elevated to constitutional status, a right is effectively removed from the hands of the people and placed into the guardianship of unelected judges. See Glucksberg, 521 U.S. at 720, 117 S. Ct. at 2267-68. We are particularly mindful of this fact in the delicate area of morals legislation. One of the virtues of the democratic process is that, unlike the judicial process, it need not take matters to their logical conclusion. If the people of Alabama in time decide that a prohibition on sex toys is misguided, or ineffective, or just plain silly, they can repeal the law and be finished with the matter. On the other hand, if we today craft a new fundamental right by which to invalidate the law, we would be bound to give that right full force and effect in all future cases—including, for example, those involving adult incest, prostitution, obscenity, and the like.

Yes, blogability's a word, and if you've been reading the news this last week or so, you know that the two major political parties have determined that their conventions are quite blogable. But do you know that lawsuits are becoming blogable, too?

Law.com has a very interesting piece here on how blogs by litigants (or their close allies) are becoming part of high-profile litigation.


Mail Call Follow-Up
After yesterday's post regarding gay marriage, a reader thought those looking for more discussion on the subject might be referred to this Arizona case, and he sent me a link.

Those who believe anti-gay marriage laws violate the constitutional principles of equal protection and due process will likely be disappointed by the Arizona court's conclusions. Those who believe such laws are not unconstitutional will probably feel the opposite. Those looking for a more in-depth discussion on the matter will certainly find it.

Wednesday, July 28, 2004
Constitutional Cafeteria
The menu just keeps getting larger. Yesterday, another citizens initiative made its way onto the November ballot after state officials confirmed the proposal had enough verified signature support. The proposal asks voters to amend the state constitution to require a $6.15 minimum wage in Florida, with automatic annual increases tied to inflation.

You can read the proposal here.

Also, you can read articles on this latest ballot addition at these links to the Orlando Sentinel and the St. Pete Times.

Land Use Battle
Many thanks to the kind reader who yesterday sent me a link to this story in yesterday's Lakeland Ledger. The story concerns two Lakeland neighbors' battle over a private landfill and how one side is trying to use a court-ordered injunction to stop the other side's efforts to obtain relief before the local county commission. It's probably safe to guess that the Second District is going to get involved here sooner or later. A very interesting story.

Appellate Tip?
To my appellate lawyer friends: Next time you have an oral argument before Judge Griffin, try working in the term "snafu."

Fifth District: Searching and Seizing
If you give a police officer permission to search your car, don't expect to win a suppression motion when the officer finds heroin hidden behind a dashboard radio that's not secured to the dashboard. For an explanation, check out this decision from the Fifth District.

Mail Call
Taking a brief break this morning from some fascinating legal work (which has really got me going 'round the clock), I found this email in my inbox:

I read with interest your remarks concerning the gay marriage lawsuit and the Full Faith and Credit Clause of Article IV of the Constitution. I wonder what might be your opinions regarding challenging the federal and/or state law based upon the Equal Protection and Due Process clauses of the Fourteenth Amendment, on the basis that the law(s) might fail the strict scrutiny test. I ask this because of the following from a U.S. Supreme Court decision:

"Since the right to marry is of fundamental importance, e. g., Loving v. Virginia, 388 U.S. 1 , and the statutory classification involved here significantly interferes with the exercise of that right, 'critical examination' of the state interests advanced in support of the classification is required. Massachusetts Board of Retirement v. Murgia, 427 U.S. 307, 312 , 314. Pp. 383-387."
ZABLOCKI v. REDHAIL, 434 U.S. 374 (1978)

Thanks for your very informative website.
And here was my response:

The United States Supreme Court case law that speaks of the right to marry concerned marriages between single men and women. This leads to several questions on whether the right extends to additional contexts. I suspect that there is consensus in the legal community that the high court was not speaking in a manner that can reasonably be interpreted to include gay marriage, which is why we are not seeing claims that anti-gay marriage laws violate the constitutional right to marry. Instead, we are seeing less direct challenges, such as the Full Faith and Credit Clause federal challenge in Tampa, the state law equal protection clause challenge in Massachusetts, and the state law common benefits clause challenge in Vermont.

By the way, the constitutional right to marry, as I'm putting it, is a concept rooted in the Fourteenth Amendment's Due Process Clause. The same clause is ultimately the source of other rights recognized by the U.S. Supreme Court but not found within the Constitution's text, such as the right to terminate a nonviable pregnancy and the right not to be subject to limitless punitive damages.

You also mention a possible federal Equal Protection Clause challenge. Keep in mind that the analysis used to examine equal protection issues has multiple steps, the first of which is to determine whether the two persons being compared are "similarly situated." If they are, and if they are receiving unequal treatment, you next consider the context of the disparity, as the context will determine the level of scrutiny applied in the last step, which is to determine if the law is supported by a sufficient governmental interest and is sufficiently narrow. That's a simplistic recitation of what's going on, and the point is to show that unequal treatment is by no means prohibited in all instances -- to the contrary, our laws are full of entirely constitutional unequal treatments. I suspect we are not seeing federal equal protection challenges to anti-gay marriage laws because there is little or no belief that the judiciary will find an equal protection violation.
This topic is terrifically interesting because it touches on a high profile area where the law is infused with a sizable dose of policy. Policies change, and some say that with those changes should come changes in overarching constitutional rights. We'll just have to wait and see if that's the way things wind up in the case of gay marriage and the validity of gay marriage prohibitions.

Monday, July 26, 2004
Schiavo News
Michael Schiavo has filed his answer brief in the Florida Supreme Court. You can read it here.

The brief covers a wide range of arguments against the constitutionality of "Terri's Law." As might have been expected, given past arguments in the case, the brief focuses on arguing that the law unconstitutionally intrudes on the right of privacy and that it violates the fundamental principle of separation of powers. The brief also touches on due process, equal protection, bills of attainder, and special laws.

The brief was plainly written to the justices, who are well aware of the legal doctrines that are at issue, and not to the uninformed public that will likely be perusing the brief in an effort to gauge what's going on.

I suppose I might do Abstract Appeal readers some good if I would go through the arguments at some length, not to say which side is right but to explain a bit about what is being argued and what the agreed-upon law says. Before doing that, though, I will wait on Governor Bush's reply brief, which should be filed by the end of next week.

For those who have happened upon this site and are looking for more information on the constitutional case, you might check out my post on the Governor's initial brief (available here) and my post on the Schindlers' amicus curiae brief (available here). Also, there are links at the top left to my 2003 Schiavo posts and (most of, so far) my 2004 Schiavo posts.

Engle Update
The Palm Beach Post has this piece on the Engle litigation -- the tobacco fraud case in which a Florida jury entered the largest verdict in history, $145 billion, against the industry. The case is now pending at the state supreme court, with oral arguments set for November.

(P.S. It's nice to see the Post recognize Shannon Carlyle as an appellate expert.)

Constitutional Cafeteria
A second citizen-proposed constitutional amendment has obtained enough verified signatures to make this November's ballot. It's the proposal to allow Miami-Dade County and Broward County voters the opportunity to decide if they would like their respective counties to allow slot machines in horse racing, dog racing, and jai alai facilities. You can read the proposal's text and summary here.

An Unsupported Suit?
I was a bit surprised to see how this article in today's St. Pete Times so clearly discussed the view that the recent gay marriage lawsuit may not have any legal support. As you may recall, a lesbian couple recently filed suit in Tampa federal court to force Florida to recognize the couple's Massachussetts marriage.

The legal basis for the suit is the Full Faith and Credit Clause found in Article IV, section 1, of the federal constitution. The article points out, and without too much hedging, that at this point in time, federal law rather plainly permits a state to apply its own public policies when determining whether it will recognize a marriage entered into in another state.

Frankly, it is nice to see an article that attempts to say something -- anything -- about the law that governs a case. Too often, articles on legal issues simply include a statement of each side's views, leaving an intelligent but legally untrained reader with no clue about where the legal truth lies, or even what law forms the basis for the debate.

My experiences with this blog in the past year tell me that many people are eager to know more about what the law says and how it works. Of course, I have also learned that some people cannot separate a decision on how to apply the law correctly to a case from a decision on which party is more deserving of a victory in the case. I suspect, though, that the risk of such confusion is worth the benefits gained when most readers come away with a more enlightened view of the legal system. Good job, St. Pete Times.

Happy Birthday
I knew I was too busy with work this weekend when I wound up unable to say happy birthday to my own blog. Abstract Appeal turned one year old this past Saturday, somewhere around 5 pm.

If you asked me a year ago if I thought I would still be doing this now, I would have told you I had no idea. I started this blog as a way to memorialize and share thoughts on some goings-on in Florida law. It seemed like it would be fun, and indeed it's been a blast.

The counters tell me that the year brought just shy of 45,000 visitors and just over 80,000 hits. Not bad for an eclectic little topic, and something I've literally tried to do in my spare time. I am very grateful to everyone who has popped by this little corner of the blogosphere. I'm also very appreciative that Hunter has so kindly devoted his time and his unusual knowledge base to help post the weekly Friday Florida Law Trivia Question.

A surprising number of folks have taken to emailing me on a regular basis with questions, and I believe I ultimately responded to everyone. A number of folks have also taken up regular correspondence with me on various legal issues, and I'm glad to say that I have met some exceptional, and exceptionally interesting, people through Abstract Appeal. I hope that continues. I learn a lot from seeing how different people approach a situation, and what questions they have. I always do my best to answer.

Well, happy birthday blog. 'Twas a good year. And thanks again to everyone for stopping by.

Saturday, July 24, 2004
Fourth District: Arbitration Agreements -- Agreement Required
Is anyone bothered by the notion that a court will not grant a party's motion to compel arbitration where the evidence does not show that the other party ever agreed to arbitrate anything? Nope. Nice win, Jack.

Nursing Home Litigation
Today's St. Pete Times has this profile on Tampa's Wilkes & McHugh, the law firm that put nursing home litigation on the map.

Fourth District: Class Action Standing
In a rare class action opinion, available here, the Fourth District confirmed the significance of standing to a class certification analysis.

Fourth District: Hypothesis of Innocence
Someone will make that into a book title. Anyway, those unaware of what it means for the state to have to exclude every reasonable hypothesis of innocence when convicting a person using circumstantial evidence will get a simple lesson from this rather basic decision from the Fourth District.

Fourth District: Eminent Domain Attorney's Fees
Eminent domain fans may be interested in this decision, in which the Fourth District reversed an attorney's fees award on the basis that it improperly rewarded benefits gained for the tenants of the property taken.

Fourth District: Sovereign Immunity
On Wednesday, the Fourth District reversed an order that granted a school summary judgment in a sexual abuse case. The school was sued based on a volunteer worker's actions, and the trial court granted the school summary judgment on the ground that it was an agent of Broward County's School Board and thus entitled to sovereign immunity. The Fourth District held that whether the school was the county's agent turned on the amount of control the county exercised over the school, and that under the circumstances of the case that question was for a jury.

Fourth District: Preservation of Error, Criminal Style
Though they may not be as ultimately foreclosing as they are in the civil arena, preservation of error rules apply in criminal cases, as the Fourth District reminds us in this decision.

Random Fun
We all know it's political season, and while this is one of the, say, four blogs in existence that is not going to suggest which candidate should get your vote, I have no problem passing along a good even-handed joke when I see it. At least not on a Saturday.

This animation short is most entertaining.

Friday, July 23, 2004
Friday Florida Law Trivia Answer
According to this statute, the voter registration books close on the 29th day before each election.  So if you want to vote in this year's primary, you must register to vote no later than Monday, August 2.  To vote in this year's General Election, you must register to vote no later than Monday, October 4.

Regardless of your party affiliation (or lack thereof), I encourage all of you to vote. Have a happy and safe weekend.

Transsexual Marriage
Isn't it strange how similar cases traveling different paths in different courts sometimes end up making their respective splashes at the same time? That's the situation today with the one man-one woman marriage issue.

As mentioned just a few posts ago, yesterday the Eleventh Circuit decided not to rehear en banc its panel's decision upholding the constitutionality of Florida's ban on gay-parent adoption.

Today, the Second District considered a woman's argument, made in the context of divorce proceedings, that her marriage was void from its inception because she married a man who, prior to a complete surgical makeover, had been a woman. The court agreed that the marriage was void ab initio, and thus never existed, under Florida's Defense of Marriage Act and similar preexisting law.

You can read the Second District's decision here.

An interesting set of issues not resolved by the decision concerns the parties' children. After they were married, the "husband" adopted the wife's child, and while they were ostensibly married the woman gave birth to a child fathered with the husband's brother's sperm. On remand, the trial court will have to determine the children's legal status.

Friday Florida Law Trivia!
By now, we all know that this November 2 is the General Election.  And this year there will only be one primary election, which will be held on August 31.  The important question is, then, under Florida law, by when must you register to be able to vote in these elections?

The answer will be posted this afternoon.

Voting Rights
Governor Bush is drawing criticism for his decision to discontinue a form used by felons seeking to regain their voting rights. Read about it in this story in today's St. Pete Times.

Eleventh Circuit's Gay Adoption Decision Stands
Yesterday, the Eleventh Circuit decided that it would not rehear en banc its earlier decision upholding the constitutionality of Florida's ban on adoption by gay parents. For more on the rehearing, check out this story in today's Sun-Sentinel.

For more on the court's original opinion, check out this earlier Abstract Appeal post.

Catching Up
As the posts below suggest, I'm on my way to catching up on some noteworthy Eleventh Circuit decisions in the past couple weeks. I got behind with them while helping with that trial in Orlando and I'm almost back to where I should be. More circuit court opinion updates tomorrow. Now, on to some news.

UPDATE: Ok, it wasn't "tomorrow." Soon...

Eleventh Circuit -- Incorporating By Reference
Here's an appellate tip. In this case, and specifically in a footnote, the Eleventh Circuit squarely held that briefs may not incorporate by reference arguments made to a district court. The court explained that such arguments are waived as not properly presented for review.

Eleventh Circuit -- Tolling
For an interesting discussion on a rarely (in my view, at least) discussed provision that allows federal prosecutors to toll the limitations period for a criminal offense while evidence is being sought from a foreign country, check out this case from the Eleventh Circuit.

Eleventh Circuit -- Standing
If it's been a while since you read a case outlining the basics on standing, check out this decision from the Eleventh Circuit.

Eleventh Circuit -- Use of Summaries
Evidence fans will enjoy reading the Eleventh Circuit's decision in this trade secrets case, where the court ordered a new trial based on the improper admission of a summary.

Eleventh Circuit -- Habeas Corpus
If you represent inmates in post-conviction habeas matters, or if at the moment you happen to find yourself incarcerated and pursuing post-conviction relief in federal court, this decision from the Eleventh Circuit reminds you that, under the Antiterrorism and Effective Death Penalty Act of 1996, district courts lack jurisdiction to hear reconsideration motions under Rule 60(b) unless they allege fraud upon the court under Rule 60(b)(3).

Thursday, July 22, 2004
Third District: More On Privilege Logs
You may recall Judge Griffin 's recent discussion on privilege logs and how Florida's case law has seemingly been on a bizarre path toward finding privilege waivers where a detailed log is not quickly produced. (See this prior post for more on this.) On a related note, yesterday the Third District granted a petition for writ of certiorari in a legal malpractice case where parties refused to disclose requested documents, object to the requests, or produce a privilege log, despite receiving five extensions of time from the requesting party. Six months after the initial requests, the trial court denied a motion to compel production.

Without suggesting that the log was due in the initial 30-day response period, the appellate court held that any privilege objection had clearly been waived, that production of the requested documents was required, and that the respondents were liable for attorney's fees for their non-responsive, dilatory tactics. I suspect that Judge Griffin would approve.

Interestingly, the respondents conceded to the Third District that they should produce the requested documents, but the appellate court found this to be too little too late:

We remind counsel that all attorneys have a professional responsibility of candor toward the court. See R. Regulating Fla. Bar 4-3.3; Hays v. Johnson, 566 So.2d 260 (Fla. 5th DCA 1990), review denied, 576 So.2d 287 (Fla.1991). Just because the respondents have now agreed to produce all responsive documents, does not mean they are absolved from their professional responsibility. Part of this professional responsibility involves forbearance from unnecessary litigation and its concomitant increased costs. Had the respondents been more attuned to their duty of candor and their proper discovery duties as litigants, Scholer would not have incurred the unnecessary expense of seeking certiorari relief in this Court.
Ouch. Note that, given the respondents' concession, there was no clear need for the appellate court to find a privilege waiver. But the court expressly found a waiver anyway, and that might prove meaningful as the case continues in the trial court.

First District: Home Disclosures
This decision from the First District applies a legal principle that all Florida homeowners should know: when you sell your home, you have a legal obligation to disclose any known defects in the home that can materially affect its value. Otherwise, you may wind up in a law suit like this one.

Third District: Avoid the Bitterness
In this decision released yesterday by the Third District, the court expressed its displeasure with how the attorneys in this family law case were unnecessarily acrimonious. A footnote in the case explained:

To demonstrate the degree of acrimony, Ms. Barber’s counsel at the hearing made a major issue about the form of quit claim deed that Mr. Barber signed to convey title to the former marital home to Ms. Barber, normally a simple prepared form document. Mr. Barber’s attorney readily agreed to have his client sign whatever form of deed that was tendered that would fully effect the agreement of the parties. Conduct of this type ill fits the image of the bar or that of family lawyers, who should be problem-solvers and not problem creators.

Second District: Child Custody
Family law attorneys may wish to take note of this decision released yesterday by the Second District. The court reversed a custody determination favoring a parent because the parent failed to comply with the Uniform Child Custody Jurisdiction Act's disclosure requirements and because the parent failed to request custody in the pleadings.

Third District: Booze Cruise For One
Does a state's dram shop law protect a cruise ship employee who, while on the high seas, serves a passenger obviously past the point of intoxication? Nope, said the Third District in this case, which rejected an argument that the forum state's dram shop law should apply. Maritime law applies.

First District: Horse Play
If you are looking for an example of a case where the judiciary steps in to fill a gap in a statutory scheme, check out this decision from the First District. The court addressed a Florida statute giving those who sponsor horse activities limited immunity for injuries occurring during the activities. The law also requires sponsors to post a specific warning to inform riders of the sponsors' immunity, but, curiously, nothing in the law explains the consequence of not doing so. After an extensive discussion and analysis, the court determined that failing to post the warning as required obviates a sponsor's statutory immunity.

Wednesday, July 21, 2004
Full Faith and Credit For Gay Marriage?
A lesbian couple from Bradenton who were married in Massachusetts earlier this month have filed a federal lawsuit in Tampa to have their marriage recognized in Florida and other states. Check out this story from today's St. Pete Times for more details.

Schiavo News
The latest in this saga can be found in this story in the Tallahassee Democrat.

To sum it up, the Schindlers have filed a motion with the guardianship court, available here, asking for relief from the final judgment adjudicating Terri's wishes. The motion makes two intertwined arguments. First, the motion asserts that "Terri has now changed her mind" about not wishing to continue to receive a feeding tube, and, second, that, "Requiring Terri to suffer the withdrawal of her feeding tube is requiring her to violate her religious beliefs."

Both arguments are based on a speech Pope John Paul II gave in March of this year to the International Congress on "Life-Sustaining Treatments Vegetative State: Scientific Advances and Ethical Dilimmas." In that speech, the Pope spoke about persons in persistent vegetative states, saying that they retain full human dignity and that knowingly and willingly withdrawing food and water from them, even if delivered by artificial means, is euthansia by omission and a violation of the law of God.

You can read the full text of the Pope's speech here.

There is some debate within Catholic circles over whether the Pope's words have application to a situation where a person in Terri Schiavo's medical condition would chose not to continue receiving a feeding tube, as opposed to a situation where medical personnel or a family simply decide that someone in Terri's condition should no longer live. As you know, Terri's case involves the former circumstance, not the latter, though Terri's parents and others believe that the guardianship court incorrectly determined what Terri would wish to do.

An interesting issue here will be whether the guardianship court is going to entertain the debate over the meaning of the Pope's words, for the purpose of determining whether they would cause Terri to change her mind about discontinuing her feeding tube. Courts generally do not wish to embroil themselves in theological issues, but Terri's Catholic faith has been brought up throughout this case.

In other news, Judge Greer has apparently ruled that the Schindlers may depose Michael Schiavo and his girlfriend in connection with the pending motion to disqualify him as guardian.

Tuesday, July 20, 2004
Engle Update
The tobacco defendants in the mammoth Engle class action filed their answer briefs yesterday in the Florida Supreme Court. You can read the common brief here, and you can read the supplemental Liggett/Brooke brief here.

The plaintiffs filed their initial brief last month. It's available here, and the Third District's 2003 decision reversing the $245 billion judgment and decertifying the class is available here.

Constitutional Cafeteria
You may have noticed that I've been avoiding discussion of the plaintiffs' lawyers/doctors battle that is being waged atop nothing less honorable than our state constitution. My reason is that I have little good to say about any of it, and until now none of the proposals has actually made it onto the ballot.

Yes, until now.

The doctors have drawn first blood. Their proposal to cap attorney's fees in medical malpractice cases has received both Supreme Court approval of its form (not its wisdom) and, as of yesterday, enough signature support to make the ballot.

Read about the proposal in this story in today's Miami Herald.

Read the proposed constitutional language and summary here. In short, the proposal provides that clients in med mal cases must receive 70 percent of the first $250,000 recovered and 90 -- yes, 90 -- percent of the remaining damages recovered, exclusive of costs.

I suppose I'm going to begin commenting on these proposals. I'll do what I can to inform the public about what it is we are really voting on, spin aside. It's going to be ugly.

Election Nonsense, Florida Style
Here's an insightful story. The Sun-Sentinel explains how election candidates are using friendly foe write-in candidates to keep single-party election primaries closed to the single party's registered voters. Someone call Rick Hasen.

Home Alone
Estranged husband and his girlfriend find his 2-year-old daughter and 3-month-old son at home alone at 11:30 pm. He calls the sheriff's office. It turns out mom was at a bar, and now she's under arrest for felony child neglect.

I wonder how many people appreciate this to be the law. You've been warned. Read about it in this story in today's Sun-Sentinel.

A Shoe-In
Today's Bradenton Herald has this story about this year's winner of the annual "It Was A Dark And Stormy Night" bad writing contest. That may not be its official name, but you get the picture.

Next year I am going to enter that contest. I can badly write as well as the next guy. And with flair.

The Feds
I'm behind on my federal case law coverage. Working on that today...

Monday, July 19, 2004
Schiavo Thoughts
During the last two weeks, my daily presence at an Orlando trial left me unable to post about three news items concerning the Terri Schiavo case. I will try to cover all three here.

First up, the Schindlers moved for rehearing, rehearing en banc, and a written opinion in their intervention appeal, which is still pending before the Second District. (For more on that case and the recent decision affirming the denial of the Schindlers' request to intervene in the constitutional challenge to "Terri's Law," check out this prior post.)

You can read the Schindlers' motion here. I will wait until this motion is ruled upon before I offer comments on it.

The second recent event concerns Judge Greer's dismissal of the Schindlers' petition for writ of quo warranto. You can read that order here. To summarize things a bit, Terri's parents filed a petition for what is called a writ of quo warranto. A writ is a particular type of order, and a writ of quo warranto is an order determining that an official lacks the authority to hold a particular office or to exercise a particular power through that office. The Schindlers argued that Michael Schiavo's status as Terri's guardian made him a public official whose authority could be questioned through quo warranto proceedings. The Schindlers also argued that Michael should be deprived of his office because, in their view, he has failed to comply with reporting requirements associated with his role as guardian.

Judge Greer heard argument on the petition and, skipping over some procedural matters that have no bearing, ultimately dismissed it. He did so for two reasons. First, he ruled that the Schindlers have an adequate, ordinary remedy in the guardianship proceeding itself, namely a motion to disqualify Michael Schiavo from serving as guardian, a motion that the court says has been on file since November 15, 2002. Second, as an additional ground that was not the basis for the ruling, Judge Greer determined that Michael's role as guardian does not qualify for quo warranto relief because a guardian is not the sort of official position that can be subject to quo warranto proceedings.

Distinguishing the underlying legal principles from whether they should apply to this case, both grounds articulated by Judge Greer are well-established bases for rejecting a petition for a writ of quo warranto.

Quo warranto proceedings are extraordinary proceedings, just like certiorari, mandamus, and prohibition proceedings. They are not appropriate where the petitioner has an adequate alternative remedy. Here, Judge Greer determined that the Schindlers have an adequate alternative remedy in the form of a motion to disqualify, brought within the guardianship proceeding itself. Judge Greer found it compelling that not only did such a remedy exist but the Schindlers had actually availed themselves of it, as a motion to disqualify remains pending in the guardianship case. (As an aside, I have heard of that motion but did not understand it still to be pending. I have no idea why neither side has not pursued it to a hearing.)

The alternative ground asserted by Judge Greer is a legal point particular to the writ of quo warranto. Quo warranto is meant to address official state conduct, and whether a particular office makes one a state actor for purposes of this writ is a legal question. I do not know of a Florida case that answers this question with regard to guardians, and Judge Greer did not conduct any sort of legal analysis in his order, but he did rely upon a decision by a local federal judge who concluded that court-appointed guardians are not state actors for purposes of 42 U.S.C. § 1983 claims.

The final recent noteworthy event concerns the Schindlers' amicus curiae brief filed in the Florida Supreme Court. You can read that brief here. It differs slightly from the Governor's Initial Brief by suggesting that, rather than a tool to confirm the correctness of the decision on a ward's wishes, "Terri's Law" protects a ward such as Terri by allowing an inquiry into whether recent events would change her mind about the use of life-prolonging medical measures. The brief specifically cites Terri's husband's relationship with another woman as a ground for Terri to change her mind, stating that perhaps she would do so out of "feistiness." How the court reacts to this argument, if it reacts at all, will be interesting. Whereas the Second District previously allowed the Schindlers an opportunity to prove that recent medical advances, if understood by Terri, would cause her to change her mind about terminating her feeding tube, the example given by the Schindlers before the supreme court is not rooted in Terri's medical condition or the prospects of her recovering her lost mental or physical abilities. Keep an eye on whether any other brief in this case addresses this point.

Sunday, July 18, 2004
Fifth District: Privilege Logs
In a special concurrence in this case, Judge Griffin pondered the state of Florida's case law regarding privilege logs. She expressed some understandable dismay at how an area essentially unaddressed by Florida's Rules of Civil Procedure can have developed, seemingly overnight, to the point where failure to provide a specifically detailed, exhaustive log at the end of a 30-day production period constitutes a waiver of any otherwise applicable privilege.

Judge Griffin's comments are not expressly directed at any one audience, but they can probably be well taken by many players in the litigation arena, including attorneys, trial courts, and appellate courts. The committee that addresses the rules of civil procedure might also take note of her comments.

My own comments on the case (which, by the way, is a per curiam denied decision, with only the special concurrence providing any discussion) should probably include a few words about what seems to have happened.

Apparently, this was a Disney case. The petitioner was Magical Cruise Company, which sought a writ of certiorari to quash a trial court's order permitting discovery of privileged materials. The privilege was found to have been waived by the failure to produce a sufficiently detailed privilege log, or to do so timely -- the concurrence is unclear. Judge Griffin began by relying on "the overall pattern of evasion of discovery manifest from the filings and from the transcript of the hearing before the trial court." Which might lead you to wonder: which is worse? Having to disclose privileged materials because of the failure to produce a timely, adequate privilege log or having to do so as a result of a demonstrated pattern of discovery evasion? Either way, waivers are being found under such circumstances, and those who wish to assert privilege objections should heed the developing case law in this area.

Fourth District: Constitutional Silence

Dear Prosecutors:

Just don't mention the defendant's right not to testify. Ever.


The Fourth District.

Third District: IIED
Looking for an interesting but not too complicated tort to call a favorite? Why not try intentional infliction of emotional distress? It's straightforward, usually involves some scandalous conduct, and offers a dose of public policy. The tort is meant to compensate those who suffer extreme conduct aimed to cripple the victim emotionally, but not the sort of conduct that one might be expected to encounter. In this case, the Third District found that allegations of a supervisor's severe racial insults and harsh task assignments failed to state a claim for this tort.

Interestingly, while the court mentioned how other legal remedies exist for such conduct, the court simply held that the conduct alleged did not state a claim. The court did not explain that the existence of other remedies is actually a basis for finding that a given fact situation fails to state a claim for intential infliction of emotional distress. IIED is a residual tort.

Fourth District: Criminal Elements
You may recall that the United States Supreme Court has issued two decisions in the last four years that, in essence, make clear defendants should be convicted and punished based only on findings made by a jury applying the beyond-reasonable-doubt standard. Slowly but surely, that concept is affecting Florida's criminal justice system. For an example, check out this decision from the Fourth District.

Third District: Failing To Prosecute Post-SOL
If a plaintiff fails to prosecute a claim for one year, should a trial court applying Rule 1.420(e) utilize a more lenient standard, disfavoring dismissal, if the statute of limitations on the claim has run? No, said the Third District in this case. To quote Judge Fletcher, "Failure to prosecute is failure to prosecute ...."

Fourth District: Settlement Risks
If a party settles with another in the course of a lawsuit, and discovery is incomplete, the settling party who later discovers additional "incriminating" evidence is unlikely to avoid the settlement. For an example, check out this decision from the Fourth District.

Fourth District: Defaulting Custody
Default judgments are not the way to determine custody issues involving children, said the Fourth District in this case.

Questions, questions
In this case, the Fourth District certified the following to the Florida Supreme Court as a question of great public importance:

The court certified this question on a post-decision motion. The original decision can be found here.

Third District: Arbitration Limits
Lots of people believe in the benefits of arbitration. Truth be told, arbitration offers substantial benefits to would-be litigants. It also offers some significant negatives, too, such as the inability to correct an arbitrator's legal error through the appellate process. The successful arbitration party in this case learned this lesson the hard way. The Third District held that an arbitrator's decision not to award pre-award interest was not correctable or even reviewable in subsequent judicial proceedings.

Happy Weekend
I'd like to say thanks to those who stopped by last week, when, for the most part, I was caught doing trial support and unable to blog. I've just about caught up now on reviewing last week's events. I'll post tonight about the state case law and tomorrow night about recent federal cases. I also have some commentary on the latest events and filings in the Terri Schiavo saga, and I'll post that in the morning.

While I'm taking a moment to talk about nothing in particular, I'd like to give credit to the exceptionally kind folks who run the Orange County courthouse. While I was there last week for the trial in Judge Mihok's courtroom, I had the unfortunate experience one day of being five minutes late for the court's afternoon session. I was carrying the revised jury instructions and verdict form that were worked out at the morning's charge conference. (It had taken the entire lunch recess, and then some, for us to input the revisions and print out the revised documents.) Knowing I was late, and that the judge was waiting on the revisions, I hurried through security, grabbed my keys and Blackberry from the security x-ray scanner, and rushed toward the elevator. With my keys just sitting atop the stack of revised instructions, I hurried into an open elevator door, slowing up just enough to cause my keys to slide off the stack of instructions and -- would you believe -- straight down the gap between the elevator car and the hallway. I was dumbfounded. I was also late, so I had to head straight to the courtroom.

Fortunately, through the course of the trial, I had gotten to know the county sheriff's deputy assigned to the courtroom, and when he heard what happened, he was kind enough to contact the right people in the court administrator's office. A couple of hours later, my keys were back in my hands, having been retrieved from the bowels below car #4. Whew. I have no idea who did that, or how it was done so fast, but I am extremely grateful.

Friday, July 16, 2004
Friday Florida Law Trivia Answer
Nope. As explained in this decision, anything can trigger an attorney's fees obligation, which makes the obligation illusory.

Friday Florida Law Trivia!
It seems Hunter is also infected with the too-much-work-to-do bug today, so I'll go ahead and post a Florida law trivia question. It's a legal question.

The following provision was used in a lease to permit the lessee to recoup attorney's fees as much as possible:

Should the Lessee resort to the use of an attorney regarding any matter arising from this lease the Lessee shall be entitled to recover from the Lessor its reasonable attorney's fees, court costs and related expenses.
Can you really do that? I'll post the not-so-surprising answer around 4:45 PM EDT today.

Supreme Court: Advisory Opinions on Proposed Amendments
The big recent news in Florida law concerns the advisory opinions that the Florida Supreme Court released yesterday concerning numerous proposed constitutional amendments that may be eligible for inclusion on this November's ballot. The court held that two of the proposals -- the proposal to double most Floridians' homestead exemption and the proposal to revamp the state's sales tax exemptions -- were deficient and thus will not be on this year's ballot.

Briefly stated, the supreme court's role in these matters is to ensure that the proposed amendment addresses only a single subject, that it is accurately summarized in a ballot summary of appropriate length, and that the amendment has a proper title. The court does not consider whether a given proposal would be a wise constitutional amendment.

In this opinion, the court held that the proposed amendment to overhaul the sales tax system was fatally deficient because it contains three distinct subjects, not one.

More interesting, in this opinion, the court held that the proposed amendment to double the amount of most persons' homestead exemption was deficient because its ballot summary is misleading. The 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.
The court held this language to be misleading because the amendment only affects how the taxable value of homestead property is calculated -- it does not necessarily provide "tax relief." The court mentioned that cities, counties, and special taxing districts may raise millage rates to make up for the decreased valuation in tax base, and since only 15 counties are at the 10-mill constitutional cap, 52 counties would be able to raise millage rates to some degree or another in an effort to restore tax income to pre-amendment levels.

Are you wondering which 15 Florida counties are already at the millage cap for property tax rates? According to yesterday's opinion, they are Calhoun, Dixie, Gadsden, Gilchrist, Glades, Hamilton, Holmes, Jefferson, Lafayette, Liberty, Madison, Suwannee, Union, Wakulla, and Washington counties. I will be bold enough to suggest that these are among Florida's least wealthy counties, and that had the amendment been approved by voters, its financial impact on these areas would have been devastating.

For more information on the proposals that were approved and disapproved, check out the stories in today's St. Pete Times and Tallahassee Democrat.

First District: Extraordinary Relief
Many know that a writ of mandamus can be used to enforce a right only if that right is clearly established, but can a petition for the writ be based on an ambiguous statute, leaving the court first to resolve the ambiguity and then to enforce the resulting "clearly" established right? Yes, said the First District in this case.

Second District: Search Warrant Review
Can the judge who issued a search warrant be the judge who later reviews the warrant's propriety? According to the Second District's decision in this case, the answer is yes, absent additional circumstances to support disqualification. Perhaps even more interesting, the court also held that the search warrant at issue was not invalid for being based in part on evidence that would apparently fail the Frye test under Florida law.

Second District: Ineffective Assistance of Appellate Counsel
If you are serving as appellate counsel for a defendant in a criminal case, here is a reminder from the Second District that failing to raise a fundmental error regarding the jury instructions may later form a basis for a claim of ineffective assistance of appellate counsel.

First District: Chapter 120 Appeals
If you would like to see an example of a case where an appellate court awarded attorney's fees to the appellee in a Chapter 120 case, check out this recent decision from the First District.

Back In Blog
Whew. It's been a long week for me. Last Tuesday evening, I got a call asking if I could be in Orlando the next morning to provide appellate support in a wrongful death/negligent credentialing trial against a hospital. Though I kept posting for a couple more days, I eventually got to the point where I was doing at night the work I would otherwise have been doing during the day, and the blogging I would have done in my off hours just had to be postponed. There were no off hours.

Trial support, from an appellate perspective, is a very fun experience when you work with trial counsel who are receptive to your input on legal issues and arguments. This was one of those cases. Chuck Ingram and Eric Gibbs, of Hannah, Estes, and Ingram in Orlando, were excellent trial lawyers who gave me their ears on all sorts of legal issues that arose during trial.

I am happy to report that the trial ended yesterday with a defense verdict from the jury. While I'd like to think the result was because of the stupendous jury instructions that I helped revise during the trial, and which the judge used almost in toto, the truth is that Chuck and Eric did an excellent job, and the jury put aside the natural sympathies in a sad case to reach the verdict most compelled by the evidence.


Now over the next couple of days I need to catch up with posts on some very neat goings on in Florida law.

Tuesday, July 13, 2004
Matt is still away in trial
As soon as he finishes his trial, he will return. Until then...

Friday, July 09, 2004
Friday Florida Law Trivia Answer
According to this statute, at least 39 cents of every dollar earned through the sale of on-line lottery tickets must be deposited in the Educational Enhancement Trust Fund. I assume this is the basis for the Florida Lottery's claim that it has contributed 13 billion to benefit education in Florida.

I remember when the debate occurred for the authorization of the lottery. The mantra for the folks in favor of the lottery was that the lottery would supplement educational spending. I wonder if there has ever been a study that tracks the Legislature's general revenue appropriations for education pre-lottery (presumably as a percentage of Florida's budget) and then compared that level of funding to what the Legislature has done since the lottery has been authorized.

Have a happy and safe weekend.

Friday Florida Law Trivia!
For every dollar spent buying a Florida on-line lottery ticket, what is the minimum amount per dollar that must be used to benefit education?

The answer will be posted between 2 and 3 p.m. today.

Matt is on TDA
Matt is letting work interfere with his ability to post today. He sends his regrets and says that as soon as he is able to post, he will do so. But it most likely will not be today.

I will post the weekly trivia question soon.

Thursday, July 08, 2004
Fourth District: Spoliation
This decision is a must-read for those interested in Florida law on spoliation. In the case, the Fourth District rejected an argument that two of its prior cases relied upon a common law duty to preserve evidence in mere anticipation of litigation. The case contains an interesting special concurrence from Judge Klein, in which he explained that a law review article published by a Florida university erroneously interpreted one of the earlier cases to recognize such a common law duty, and that the article was in turn erroneously relied upon by a Northern District of Florida decision.

Third District: Staying Class Actions
If class action litigation is of interest to you -- or if you refuse to believe that a veritable cornucopia of lawsuits are pending against Smuckers for selling jelly that's not really "Simply 100% Fruit" -- check out this decision from the Third District. The case involves multiple Florida class action cases against Smuckers and the defendant's effort to stay those cases pending resolution of a national class action case in Illinois. The trial court denied a motion to enter a stay, and the appellate court quashed that decision, directing that a stay be entered.

Fourth District: Disqualification
For an interesting decision quashing an order that disqualified a litigant's attorney, check out this decision from the Fourth District. The case involved a whistleblower suit between a company and its former general counsel. The former general counsel had shared privileged communications between her and the company with her attorney in the whistleblower litigation, and for this reason the trial court disqualified the attorney. The appellate court held that no basis to disqualify existed.

Fourth District: NICA
If you are interested in case law regarding the Florida Birth-Related Neurological Injury Compensation Act, you may wish to check out this decision from the Fourth District, which held that the parents in the case could not recover a settlement from the delivering physician and a statutory award.

Schiavo Thought
A reader emailed me yesterday to ask what I meant by my comment in this post that Governor Bush's initial brief never referred to "Terri's Law" as such and that this was probably intentional on his counsels' part. The perceptive reader took a guess, and she's right: calling the law "Terri's Law" could potentially be seen to support or at least draw attention to Michael Schiavo's arguments that the law is an improper special law or bill of attainder, designed for and applicable to only Terri, and that it denies Terri equal protection.

There is a counterpoint, though -- referring to the law as "Terri's Law" could also engender sympathy for Terri's parents' position and serve as a reminder of the passion and emotions involved in getting this particular law passed. After all, the Terri's Fight site frequently uses this term.

So perhaps both sides in the current dispute have reason to avoid the term.

As for me, readers paying close attention may have noted that I have started referring to the law as "Terri's Law" only in the last month or so. For the seven or eight months prior to that, and at the cost of great awkwardness at times, I referred to it as just "the law" or the "new law" or something of the sort. I did that intentionally, to avoid either implication suggested above. I finally succumbed to using the "Terri's Law" term -- which I consistently put in quotes -- when the awkwardness of not calling it that got to be too great, as events in the case have gotten more complicated to describe.

Wednesday, July 07, 2004
Schiavo News: Initial Brief Filed In The Florida Supreme Court
Yesterday, Governor Bush filed his initial brief with the Florida Supreme Court in his effort to defend the constitutionality of "Terri's Law" -- an informal term for the law that permitted the Governor to order Terri Schiavo's feeding tube reinserted last year, and a term that is (intentionally, no doubt) never used in the initial brief. The brief, available here, hits the 50-page maximum and appears to be a well drafted presentation of the Governor's positions.

The brief's argument opens with an extensive discussion about how the Governor should not be bound by the results obtained in the earlier trials between Michael Schiavo and the Schindlers. The Governor's attorneys apparently consider this his most powerful point, and it certainly gives the Governor an opportunity to discuss his desire to litigate anew the issue of whether Terri would choose to keep her feeding tube under her present circumstances. A high profile claim here is that Terri's wishes should be decided by a jury.

Next, the brief directly challenges the trial court's conclusions that Terri's Law violates her constitutional right to privacy, arguing both procedural (improper burden shifting) and substantive (compelling interests exist, narrowly tailored) grounds. Finally, the brief argues that the law does not violate the separation of powers doctrine.

In the end, this brief will probably make those who support the Governor's positions very happy. The real question, though, is how it will be received by the court's seven justices, who are neither supporters nor detractors. I suggest reserving judgment on that until Michael Schiavo's answer brief and the Governor's reply are submitted over the next several weeks.

Next up should be the amicus curiae brief of Terri's parents, the Schindlers. I do not know that they intend to file such a brief, but if they do, they have five days from yesterday to do so, not including the weekend.

Tuesday, July 06, 2004
Gay Adoption Law Challenge
Florida's law against adoption by gay persons is about to be challenged by... the Family Law Section of The Florida Bar? The section wants to push for the law's repeal. Read about it in this story in today's Sun-Sentinel.

My View: Defending Unconstitutional Laws
Lucy Morgan is a columnist for the St. Pete Times. This weekend, she chastised Governor Bush and Secretary of State Hood in this piece for "hiding" behind an "arcane" law that limits unfettered access to Florida's voter registration lists to a select few persons. Morgan apparently felt that the Governor and the Secretary of State should simply have ignored the law based on its asserted unconstitutionality. Her column began:

Gov. Jeb Bush should write a thank-you note to Leon Circuit Judge Nikki Clark, but it's not likely he will think of that.

The judge just saved him from himself.

For several months Secretary of State Glenda Hood, a Bush appointee, has been refusing to cough up a list of 47,000 suspected felons who are registered to vote. Despite pleas from virtually all of the state's news media as well as CNN, Hood declared the list off-limits.

It would seem Florida election officials could use all the help they can get from those willing to wade through 47,000 names, but the governor and his minions disagreed.

Let's keep it secret, they said, relying on an arcane law that made voter lists off-limits to the general public. Almost everyone else could get the list, but news organizations that might actually check its accuracy couldn't get it.

CNN sued. Clark declared the law unconstitutional and ordered the immediate release of the list. The ruling may temporarily embarrass Republicans, but it is far better to have egg on their faces in July than to have a close election turn on a flawed list in November.
I have enjoyed reading Morgan's columns for years, and she is a competent critic of Florida's political scene. But she is wrong here. I am not talking about her political musings on what Republicans should or should not do -- this web log does not concern such things -- but about her premise that the state's executive leaders should have ignored a law that, in her view, was plainly unconstitutional. That is not how Florida's government operates.

In Florida, our legislative officials are elected to enact legislation and establish the state's public policies. Our executive officials are elected and appointed to carry out the law. Our judicial officials are elected and appointed to interpret and apply the law to cases brought before them. These roles are remarkably distinct, and the doctrine of separation of powers (found in Article II, section 3 of our constitution) declares that any overlap must be minimal, if any exists at all.

In the case of a law challenged as unconstitutional, it is not the role of Florida's executive officials to determine whether the law is unconstitutional and thus should not be enforced. It is rather the executive branch's role to defend Florida's laws to the greatest extent possible, asserting whatever good faith basis exists to maintain a law, and defer the constitutionality issue to the judiciary, whose role it is to determine whether one law (such as a state statute) can survive in the face of a superior law (such as the state constitution). There is an exception or two to this, such as where an executive official is required to expend taxpayer monies in a manner that appears unconstitutional. Such exceptions do not appear to have any application to the voter registration law.

Any other system would create chaos. Executive officials would function as mini-judiciaries who could ignore a law simply because, in their minds (or their supporters' minds), the law is not valid. The legislature's will would go unheeded -- perhaps forever, or perhaps until a new and differently-minded official took the office, or perhaps until a citizen stepped forward and requested the courts to compel compliance with the law. The latter cases would indeed be bizarre, since the officials would find themselves defending their own actions in court by arguing against the enforceability of another branch of government's actions, based on no higher principle than the officials' belief in the law's unconstitutionality.

Florida's legal system is much more sensible. Executive officials carry out the law. If a person is sufficiently affected by a law and believes it to be unconstitutional, the person may challenge the law in court. The executive official charged with enforcing that law is the proper defendant, and it is that official's job to make every effort to uphold the law. The adversarial system will then run its course, and justice will be done.

Politics being what it is, there will always be criticsm, well founded or not, for the actions of our executive and legislative leaders. There is no legitimate basis, however, to disparage an executive official for refusing to ignore a law that has not been judicially declared invalid.

Voter Registration Database
Many thanks to the reader who sent me a copy of the order I mentioned in this post late Friday -- and within 30 minutes of my wishing aloud that I could see a copy. The order, available here, is a worthwhile read. Judge Clark declared unconstitutional section 98.0979 of the Florida Statutes, the statute that significantly restricts who may obtain copies of Florida citizens' voter registration information through public records requests. The basis for the order was the Legislature's complete failure to offer a public necessity for limiting access to the database, a requirement of Article I, section 24 of Florida's Constitution.

The order is particularly significant in that, while the media interests who challenged the law were doing so to obtain information regarding persons designated as felons ineligible to vote, the result of the case quite plainly appears to be that the entire statute restricting access to voter registration information has been declared a nullity.

My experience with prosecutions has been that where a criminal charge is brought against someone for something that seems rather minor, there is often more to the story and the charge does not reflect actual harm that has occurred. I sure hope that's true in the case of this 12-year old boy.

Second District: Blood Tests
This decision from the Second District explained how, under a Florida implied consent statute, if a police officer has reason to believe that you just injured or killed someone while driving a car under the influence of alcohol or drugs, a blood sample is going to be drawn from you, whether you expressly consent or not, and by force if necessary.

Fifth District: Municipal Powers
City and county attorneys may be interested in this decision from the Fifth District, which held that a city's agreement to an injunction preventing it from implementing a certain law did not stop the city from implementing a different law that in essence achieved the same result.

Second District: A Striking Note to Trial Judges
Dear Trial Judges, please strike, rather than rule upon, pro se motions for relief from sentencing under Rule 3.170(l). That is the message the Second District delivered in this thoughtful opinion that explored the relationship between Rules 3.170(l) and 3.850.

Second District: Condemnation Valuations
Eminent domain fans will appreciate this decision from the Second District. The court held it to have been error not to admit evidence that a rental property's value as such had been declining over the years due to the looming threat of condemnation.

Notably, the court also held it to have been error not to give a requested jury instruction informing the jury of the legal principle that the land's valuation should not be influenced by the effects of prospective condemnation.

Friday, July 02, 2004
Friday Florida Law, Err, USA Trivia Answer
America's first "national" government became effective on March 1, 1781, when the Articles of Confederation were finally ratified. The first President of Congress, which some contend means that he was the first President of the United States, was John Hanson, who served in that position from November 5, 1781 through November 3, 1782.

For a greater detail of the history of the Articles of Confederation, you may read about it here. An interesting comparison between the Articles of Confederation and the Constitution may be found here.

Please have an enjoyable Fourth of July holiday weekend, and please be safe.

Before Hunter stops by to post his answer to today's rather neat question, a quick news flash: Circuit Judge Nikki Clark in Tallahassee has ruled unconstitutional the Florida law that makes the list of felons who are ineligible to vote exempt from public disclosure. You can read about it in this story from the Tallahassee Democrat. The story also suggests that the ruling may give way to public disclosure of the state's entire voter registration list. Boy, would I like to see a copy of that order.

Hope you knew the answer to Hunter's question...

Friday Florida Law, Err, USA Trivia!
In honor of America's Independence day, this week's question has more of a national scope instead of Florida scope. I promise to resume my weekly quest to stump you with all things arcane about Florida law. Here goes this week's question...

We all know that the colonies declared their independence from the monarchy on July 4, 1776. Less well known, however, is the date that America's "national" government became effective. Name that date.

Eleventh Circuit: Enjoining Arbitration
When the decision's introductory part ended with a roadmap of what each subsequent part would discuss, I suspected that a fairly comprehensive opinion was about to follow. One did. In this decision, the Eleventh Circuit set out to clarify, conform, and correct the circuit's law regarding injunctions and arbitration proceedings, as well as how the two subjects interrelate. Ultimately, and after an intriguing discussion that included when and how a plaintiff can drop individual claims from a suit, the court reversed a district court's order enjoining the defendants from arbitrating claims the district court had found not arbitrable and claims the plaintiffs had putatively dropped. A very interesting read.

Eleventh Circuit: Antitrust
The Eleventh Circuit's latest antitrust case, which affirmed the dismissal of a complaint regarding commercial practices by companies operating Spanish-speaking radio stations, is available here. It contains a particularly interesting footnote about civil practice in general. Note 1 explains that, in a hearing on a motion to dismiss, a district court can consider unpled allegations advanced at the hearing, on the theory that the unpled allegations can be pled, and the efficient course to justice can be to consider them at that time.

Eleventh Circuit: Employment Litigation
Employment law fans may be interested in this decision from the Eleventh Circuit. Disagreeing with other circuits, the court maintained its prior position that a specific jury instruction on pretext is not required in an employment discrimination case.

Thursday, July 01, 2004
Schiavo News: The Supreme Court Case Moves On
As if the Second District's PCA in the intervention appeal did not give me enough to talk about already this morning, the Florida Supreme Court yesterday issued a series of orders relating to the constitutional challenge. First, in a high-profile lesson to out-of-state practitioners, the court denied a group's motion for leave to appear as an amicus curiae ("friend of the court") because the motion was not signed by a member of The Florida Bar.

Next, the Court denied two motions by Governor Bush. One motion, available here, requested that the court stay the appeal until Judge Greer rules on a pending petition for writ of quo warranto in the guardianship case. (You can read more about that motion and that petition in this prior post.) The supreme court denied the motion unanimously in this order.

The other motion the court denied was a motion, available here, to reschedule the oral argument because the Governor's lead counsel, Ken Connor, has a potential conflict on the date of the argument. He will be plaintiff's lead counsel in a Mississippi case against a nursing home that is scheduled for trial on the date of the supreme court argument. The court denied the motion in a 4-3 divided order available here.

It seems that the court has decided that if this case is important enough for pass-through jurisdiction and expedited briefing, then it needs to go forward now. So the oral argument on the constitutionality of Terri's law will be held, as scheduled, on August 31, 2004.

Schiavo News: The Intervention Issue Is Over
Florida's appellate courts had a few things to say yesterday concerning the Terri Schiavo saga. First up, the Second District.

You may recall that when Michael Schiavo sued Governor Bush to prevent him from using "Terri's Law" and challenging that law as unconstitutional, the Schindlers filed a motion to intervene in the suit. Judge Baird denied that motion in a brief order. The Schindlers appealed, and, in this decision, the Second District reversed. It was suggested by some that the Second District had ruled the Schindlers could intervene, but, as I pointed out back in this Abstract Appeal post, the bottom line from the reversal was simply that the appellate court found Judge Baird's order unclear as to its reasons and, on remand, Judge Baird would have to rule again, in greater detail.

Much greater detail came in this order, which again denied the Schindlers' motion to intervene. The ruling explained that intervention of right under Florida law calls for a legal right or interest of the prospective intervenor to be directly at stake in the case, and that while the Schindlers certainly cared about their daughter's fate, such parental concerns do not give parents a basis for intervention in a suit involving an adult, emancipated child. It should be noted that, from the start, Judge Baird was willing to allow the Schindlers to participate in the case as an amicus curiae ("friend of the court"), which would allow their legal arguments to be heard by the court.

The Schindlers appealed that second order, too, but this time they were not successful. Yesterday, the Second District affirmed Judge Baird's order in a per curiam affirmed decision listed here. Florida's district courts of appeal issue per curiam affirmances, which are unwritten, citationless decisions upholding a lower court's rulings, with great frequency. I would estimate that "PCA's" (as attorneys call them) are issued in somewhere between 70 and 90 percent of appeals, depending on what kind of cases are being discussed and the time period sampled. Generally, a PCA is issued when a district court believes that the case presents no new legal issues and that publication of a written decision affirming the trial judge would not advance the law in any way.

The consequence of a PCA is generally that the case is over. While I can think of highly unusual circumstances that would be an exception to this, none applicable here, a PCA generally provides no basis for the Florida Supreme Court to review the case, and it seems infinitely unlikely that the United States Supreme Court would be interested in a case in which no state-level appellate opinion was entered, assuming an issue of federal law exists. As a result, a PCA is widely considered to be a case's death knell.

In the Terri Schiavo saga, the intervention issue is over.

Second District: Childish Actions With Adult Consequences
How often do people, especially kids, engage in fistfights? Too often, no doubt. In this case, the Second District confronted an unfortunate situation where a seventeen-year old boy's single punch, obviously well landed, killed a sixteen-year old boy. The first young man was convicted of manslaughter and argued on appeal that the facts could not support any level of homicide conviction. In an eloquent opinion written by Chief Judge Altenbernd, the court disagreed. The law permits a conviction under the circumstances of the case, where the younger boy was punched squarely in the eye, twisting his neck and rupturing a key artery, at a moment when he was distracted and unprepared to defend himself. Though doing so was not necessary, the court offered the following words regarding the operation of justice in a case like this:

John Acosta was a bright young man, undoubtedly headed to college and a good future, when he chose to transform a verbal altercation into a fistfight. Thousands of teenage boys before him have engaged in similar, senseless fights without such tragic endings. On one hand, it seems such a waste of a human life to incarcerate him for nearly a decade at this critical time in his life. On the other hand, James Brier is dead. His family and loved ones will not have the opportunity to have him come home to them after a decade.

Sometimes we must remind ourselves that the primary purpose of sentencing is to punish the offender. See § 921.001(4)(a)(2), Fla. Stat. (2001). In that regard, the legislature has chosen to award 120 victim injury points for death in a manslaughter case, which virtually assures a defendant that he or she will spend approximately ten years in prison for the offense. See § 921.0024, Fla. Stat. (2001).

Likewise, criminal law was established to recognize the human desire for vengeance and to satisfy that craving in a way that helps preserve an orderly society. As best said by Oliver Wendell Holmes:

The first requirement of a sound body of law is, that it should correspond with the actual feelings and demands of the community, whether right or wrong. If people would gratify the passion of revenge outside of the law, if the law did not help them, the law has no choice but to satisfy the craving itself, and thus avoid the greater evil of private retribution.
Oliver Wendell Holmes, The Common Law 36 (Mark DeWolfe Howe ed., Harvard Univ. Press 1963) (1881).

The students of Manatee High School will never benefit from the death of James Brier or the imprisonment of John Acosta. However, perhaps the loss suffered by these two teenagers and their loved ones will serve as a reminder to other teenagers that fistfights are not an acceptable extracurricular activity in high school and that the consequences of those fights can be permanent and long-lasting.

Fourth District: Peremptory Strikes
This decision from the Fourth District points out that, when the use of a peremptory strike is challenged as potentially race-based, the issue for the trial judge is the credibility of the striking attorney regarding the strike's racially neutral basis, not whether the juror can be impartial. Nice win, Henry.

Second District: Lex Loci Contractus and Snow Birds
Yes, Florida law still makes use of Latin phrases. Lex loci contractus is a common law doctrine that, in essence, holds that a contract should be interpreted and enforced according to the law of the state where the contract was made, unless that law is contrary to the strong public policy of the forum state for the litigation. A snow bird -- well, you all know what snow birds are, right? An adult, usually retired, who spends the winter months in Florida to avoid the cold weather "up North."

In this case, the Second District made use of both terms. The court reversed a summary judgment enforcing an exclusion in an automobile insurance policy issued in Indiana. The exclusion precluded the stacking of underinsured motorist benefits -- a provision lawful in cold Indiana but contrary to sunny Florida's legislatively stated public policy. The trial court had entered a summary judgment holding that the exclusion should be enforced, but the appellate court reversed for further proceedings. The court held that issues of fact remained regarding whether the insurer knew its insureds had "established a significant degree of permanancy in Florida," (i.e., whether it knew they were snow birds). If so, the insurer should have known its policy's risks were based in Florida, Florida's public policy should control in this Florida suit, and the exclusion at issue should not be enforced.

Second District: More On Special Laws
A case discussed here yesterday involved special laws. Those looking for more on the subject (including those interested in that argument's application in the Terri Schiavo constitutional challenge) may wish to check out this decision from the Second District, which reversed a trial court's determination that a particular law was a special one improperly adopted as a general law.

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

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