Abstract Appeal -- by Matt Conigliaro

Tuesday, August 31, 2004

Schiavo Thoughts

I'd appreciate it if nonlawyers who watched this morning's oral arguments in the Schiavo case would email me their thoughts. I'd like to hear how you interpret what happened.

I came away with few new thoughts. The only justice to tip his hand, so to speak, on any issue was Justice Wells, who as I heard it stated that he believed "Terri's Law" was a special law and not a law of general application. He asked if the court would not be ignoring reality if it saw the law any other way.

Special laws are essentially laws directed at specific persons or specific geographic areas. They are constitutionally permissible, if it all, only under certain conditions and when certain steps are taken. Those steps were not taken in the case of "Terri's Law." Governor Bush has asserted that "Terri's Law" was a general law, not a special law, because it applies to anyone who met the law's criteria during the 15-day period the law was in effect. Michael Schiavo has argued that the law was plainly a special law, designed to apply for a brief period of time to the only person who met the law's very narrow criteria during that time -- Terri Schiavo.

Judge Baird never reached the issue of whether "Terri's Law" was a special law. He instead found the law unconstitutional on four other grounds. Justice Wells's thoughts on the special law issue suggest that this law's battle to be upheld is indeed uphill.

All told, the justices appeared to understand the various constitutional issues and the facts of the case rather well, and the attorneys were basically prepared to answer the questions they received. I think Michael's attorney had the most trouble during the questioning, but some may consider it significant that the hardest questions he received concerned hypothetical legislative actions that were quite different from what actually happened in this case.

I examine the high court's opinions each week, but I will not start expecting a decision in this case until, well, at least late in the year. I will note that the sooner a decision is released, the more likely it is that the court finds the law unconstitutional. I see very little chance -- almost no chance -- that a decision released in the next couple of months will uphold "Terri's Law." It is possible that the court could quickly rule against the law's constitutionality -- for instance, on grounds the law violated separation of powers principles by improperly delegating legislative authority to the executive branch -- but I think the odds favor a decision that takes many months to craft, with concurring opinions addressing matters the court's opinion does not reach and perhaps partial dissents on matters the court does address.

...posted by ⊥ 11:34 AM ⊥ #

Monday, August 30, 2004

More Schiavo Thoughts

Tomorrow's audience for the Schiavo oral arguments will probably include many people who have never before watched an oral argument. I'll try to offer some insight on what to expect.

First, expect no fireworks. Oral arguments are respectful events. The sort of fiery rhetoric seen on message boards and television and newspaper interviews will absolutely not be seen in the courtroom.

You can expect the justices to ask many questions of both sides. Don't be surprised if a particular justice asks hard questions of one side or both sides. Unless the justice begins a question with a comment like "I think such and such," don't attempt to read the questions as betraying a point of view in the case. Judges ask hard questions of the side they agree with just as often as they ask hard questions of the side they disagree with, and in a case with as many issues as this case has, it is very possible that the justices will agree with each side on some issues but not others.

Overall, because the justices will be looking for the simplest way to resolve this case, I expect that the justices will appear to be looking to hold the law unconstitutional. That does not mean the justices are inclined to hold the law unconstitutional -- it's just that probing the various ways to resolve the case is the most efficient use of their time during the oral argument.

If you happen to be particularly passionate about the case, don't be surprised if the attorney on your side does not voice the arguments you would use if you were standing before the court. I've seen the attorneys in this case give a pass to some very off-the-wall arguments, presumably because the attorneys like having the public on their side even if the public is really uninformed about what the law provides and what is really a good argument.

Expect the Browning decision to come up quite a bit and for the attorneys and the justices to be fluent with its issues and holdings. You can read that decision here.

Finally, don't expect the argument to end with any clear indication of how or when the court will rule. We won't know the result until it's out, and I expect the decision to take many months. A year would not be a surprise.

Wait. One last thought. Watch the arguments on C-SPAN-2 if possible. I expect the court's Internet feed to be iffy, given the likely demand from around the world. If you must watch the session over the Internet, go here at 9:00 a.m. If you log on to that page before 9 a.m., you will need to refresh the page at just about 9 in order to acquire the correct link to watch the arguments.

...posted by ⊥ 3:44 PM ⊥ #

Schiavo Thoughts: Substance of the Arguments

As you probably know, tomorrow's oral argument in the Terri Schiavo case concerns Michael Schiavo's challenge that "Terri's Law" is unconstitutional and thus unenforceable. Michael has made about seven different arguments against the law's constitutionality. The trial judge in the case, Judge Baird, addressed only four of them but agreed with Michael on all four. Governor Bush has appealed Judge Baird's decision, and the appeal is being heard by the Supreme Court of Florida, with oral arguments to be held tomorrow.

At the outset of a discussion on the case's substance, I will offer a few general observations about how courts approach constitutional cases. First, courts are very aware of the signficant precedential effect that constitutional decisions may have on future laws and future legal challenges, and so courts try to avoid ruling on constitutional issues whenever they can. Obviously that's not entirely possible here, since the Schiavo case consists of only constitutional challenges, but when courts must rule on constitutional issues they usually look to dispose of the case's arguments on the most narrow grounds possible, ones that require as little constitutional interpretation as possible or are highly case-specific, or both.

In this case, Michael need win only one argument on the law's constitutionality in order for him to win the case, and the court could write a decision discussing only that argument and concluding that the law is unconstitutional. By comparison, the court will have to reject (and perhaps write a decision on) all of Michael's constitutional arguments for the Governor to win the case. These facts suggest that, if the justices believe the law is not constitutional, they will look for the most narrow, case-specific way to reach that decision.

I will explain in the next post how these observations square with what might be expected at the oral argument, but for now I will stick with discussing the substance of the parties' arguments. The ground I see as the most likely to catch the court's attention as a way to resolve this case is Michael's delegation of power argument. It is a simple point because it does not require the court to explore any new constitutional ground: Florida law is already settled that, under the Florida Constitution's separation of powers provision, the Legislature may not give any member of the executive branch unfettered authority to make substantive decisions, generally speaking. Michael has argued that "Terri's Law" allows the Governor to order the feeding tube reinserted or removed without setting forth the circumstances under which the Governor can make either decision, giving the Governor unrestrained discretion to do whatever he chooses.

While the court may ultimately reject this argument, it is a strong one, and I expect the court to give it much consideration. The text of "Terri's Law" states what circumstances trigger the Governor's decision-making authority, but nothing in that text tells the Governor what should guide his decision, be it the ward's wishes, the ward's family's wishes, a popular majority's wishes, or anything else. This is what Michael's Answer Brief meant when it argued (at page 20) that 100 juries could determine Terri's wishes and the Governor would have no obligation to follow their decisions.

It bears mention that Judge Baird made this point his first ground for declaring Terri's Law unconstitutional, while the Governor's Initial Brief discussed this point only on pages 47-50. That discrepancy in prioritization is, in my experience, highly unusual.

The next point that I think is narrow enough to draw the court's early attention is one given short treatment by both sides: the equal protection point. "Terri's Law" gave the Governor a total of 15 days to order a person like Terri's feeding tube reinserted, so 30 days after the law took effect a person in Terri's exact situation had no remedy. I acknowledge that there are some very interesting legal issues surrounding whether a law's temporal limitation can give rise to an equal protection violation, but this ground is probably worthy of more discussion than the parties have given it, and it is one that the court may seize upon as a means of resolving the case without entering the more murky realm of privacy.

Moving on to the privacy discussion, there are three separate arguments involving the "right to privacy," all of which were accepted by Judge Baird. The first is a straightforward argument that does not concern the facts of Terri's case at all: that the law impermissibly interferes with the privacy rights of any ward whose feeding tube is ordered reinserted by the Governor. Michael argues, and Judge Baird agreed, that the law simply ignores the wishes of any ward whose feeding tube is reinserted. The issue here is whether the state has a compelling interest to interfere with the ward's privacy rights and whether the state has done so in a way that minimizes the intrusion. This is a complicated issue even to discuss, let alone decide.

I'll pause here to point out that I've thus far mentioned three significant arguments in the case that have nothing to do with Terri's individual circumstances. It would seem, then, that none of them has any connection to the Governor's argument that a new trial is necessary to determine Terri's wishes. In other words, the court could determine that "Terri's Law" is unconstitutional on any of the grounds discussed above without having to know whether Judge Greer reached the "correct" result on Terri's wishes in the original trial.

The second privacy-related argument concerns Terri's right to privacy and the principle of separation of powers. Michael argued, and Judge Baird agreed, that the law impermissibly overruled the judiciary's decision regarding whether Terri would choose to have her feeding tube removed. (Recall that Judge Greer's initial decision in the case was not what Michael or Terri's parents would choose to do but what Terri herself would choose to do in her situation.) This is closely related to the third privacy-related argument, which Judge Baird also accepted, that "Terri's Law" attempts to redefine, retroactively, Terri's privacy rights and how they are given effect. These are also complex points, one principally involving separation of powers and the other due process, and the Governor's primary response to each of them is that a new trial -- one with a jury -- is needed to determine what Terri would choose to do about her feeding tube.

A lot of people, or at least a lot of nonlawyers, are intrigued by the Governor's jury trial argument -- or so it seems from the email I have received over the last several months. Does that argument really hold up? I could write a short treatise on the point, but for today's purposes I'll condense the discussion down considerably. First, there is a very large difference between a jury making a binding decision regarding a fact, such as what Terri would do, and what the Governor seems to want, which is more like a recommendation or an advisory verdict. Second, and this is really making a long story short, the constitutional right to a jury trial in criminal cases does not apply at all in this civil context, and Florida's constitutional right to a jury trial in civil cases applies only to trials over claims for which the law in 1845 provided a right to trial by jury. That's why there's no jury trial in nearly all family law situations. Can you picture a jury deciding who should get custody of the kids in a divorce action? Now, this does not mean that the Governor could not utilize a jury for advisory purposes, and perhaps that is what his counsel will argue if this subject is raised at the oral argument. This also does not address the question of whether the Governor is bound by the results of the earlier trial, and the Governor has urged from the start that he is not bound by the earlier proceedings since he was not a party to them. That topic will almost certainly be raised at the argument, but it is too complex for me to explore in what's already become a rather long post.

Well, that is my brief look at the substance of the case for purposes of tomorrow's oral argument. As I mentioned below, I will post later today on what we might expect to see happen tomorrow.

...posted by ⊥ 8:35 AM ⊥ #

Schiavo Thoughts

Tomorrow's argument has crept up on me. I haven't had the time to post anywhere near the number of thoughts I'd like to have posted, so I'm going to try to make up some ground with two posts today. The next post will be the first one and will cover some of the case's substance. The second will be posted later this morning and will discuss some "what you can expect" points about the oral argument itself.

...posted by ⊥ 4:28 AM ⊥ #

Saturday, August 28, 2004

Recount Procedures

Election law fans will be terribly interested in this order issued yesterday by Administrative Law Judge Susan Kirkland. She declared invalid, as contrary to Florida's statutes, a rule adopted by the Department of State prohibiting recounts where votes are electronically cast.

The significance of the ruling is, at this point, unclear. Section 102.166 does state that in elections of a certain closeness recounts will be performed. The rule against recounting electronic votes, however, was based on the notion that nothing could be learned through a recount -- overvotes do not exist with electronic voting, and for an undervote (where no candidate or option is actually seleted) there are no markings or other indicia to indicate voter intent.

So what will be gained by "manually" recounting electronic votes? Well, it seems the precinct tabulators will be examined to ensure that the precinct totals are consistent with the overall election total. Also, perhaps a recount's mere occurrence opens the door to challenges that could not be brought were no recount to occur.

...posted by ⊥ 5:43 AM ⊥ #

Friday, August 27, 2004

Friday Florida Law Trivia Answer

According to this statute, Florida's Chief Cultural Officer is the Secretary of State, who currently is Glenda Hood.

Have a wonderful and safe weekend.

...posted by ⊥ 4:35 PM ⊥ #

Friday Florida Law Trivia!

Hi folks! It seems like I haven't asked you a question in about a month. I think this one is slightly easier than last week's question, which Matt was so excited to share with you. Really. He came to my office just giddy over the question!

Anyway, my question is this: Who is Florida's Chief Cultural Officer? Name that person.

I will post the answer later this afternoon, most likely around 4:45 p.m. EDT.

...posted by ⊥ 9:00 AM ⊥ #

Election Suit, Straight Down From The Top

Regular readers may recall this post from last week, which described how a group of unions recently filed a petition for writ of mandamus directly in the Florida Supreme Court. The petition asks the court, among other things, to declare a 2001 statute unconstitutional to the extent it permits persons who claim to be registered to vote in a county -- but not actually on the rolls on election day -- to cast a provisional ballot if they do so at their correct voting precinct. It's the precinct requirement that the unions assert is unconstitutional.

My post noted some (but not all!) of the issues that leapt to mind upon looking at the petition, including the major concern of why the case should be heard first in the state's highest court when, even though the election is just over two months away, the statute being challenged was enacted three years ago. Well, yesterday, without giving any specific reason, the Florida Supreme Court transferred the case to the local circuit court. You can read the order here.

...posted by ⊥ 8:28 AM ⊥ #

Parental Notification Case

With the general election fast approaching, I suppose we should begin to expect the unexpected, and here's a good example. Yesterday, in this order, the Supreme Court of Florida accepted jurisdiction in the parental notification amendment challenge and ordered simultaneous briefing from each side -- by Monday. The order also states that the court will not hear oral argument in the case.

For more on this challenge, see this Abstract Appeal post from yesterday.

...posted by ⊥ 7:51 AM ⊥ #

Fourth District: Arbitration

Can a Florida court order arbitration out of state? Not under Florida law, but it can if the Federal Arbitration Act applies. For more, see this decision from the Fourth District.

...posted by ⊥ 7:28 AM ⊥ #

Thursday, August 26, 2004

First District: Abortion Issue, Straight To The Top

For the second time this year, a district court of appeal has certified a case to the Florida Supreme Court as requiring immediate resolution by the state's highest court. The first time concerned "Terri's Law," a subject that has received a good bit of attention on this blog. Next up: the politically contentious subject of abortion.

Here's the short version of a long story.

Decades ago, Florida had a statute that required a minor to obtain a parent's consent, or utilize a judicial bypass procedure, before a physician could lawfully terminate her pregnancy. In 1989, our state supreme court declared that law unconstitutional under Article I, section 23 of the Florida Constitution -- Florida's right to privacy. The court determined that the law infringed too far on the minor's right to choose by giving the choice to her parents.

Fast forward to just a few years ago. The Legislature enacted a new statute that required not parental consent but parental notification regarding a termination procedure, with a judicial bypass available for minors who wished to avoid giving notice. The United States Supreme Court has ruled that such a law does not violate the federal constitutional right of privacy, but last year, in this decision, the Florida Supreme Court held that the notification law, like the parental consent law, violated the minor's right to choose under Florida's constitutional right of privacy.

The Legislature reacted to last year's decision by proposing a constitutional amendment that makes clear the right of privacy in our state constitution does not preclude the Legislature from enacting a parental notification law for minors' abortions, so long as it contains a judicial bypass procedure. The proposal is scheduled to be on the ballot in November's general election. A number of groups have challenged the proposal, asserting that its ballot summary and title are misleading. The case was brought in Leon County circuit court, where a judge rejected the plaintiffs' arguments. The groups then appealed to the First District, which yesterday issued this order certifying the matter to the state supreme court for immediate resolution.

As the basis for its certification, the district court relied on the closeness of the pending election and the weeks-away statutory deadline for mailing absentee ballots. The court explained:

[T]he general election will be held on November 2, 2004, and therefore absentee ballots must be printed and mailed no later than September 17, 2004, in accordance with section 110.62(4)(a), Florida Statutes. There is insufficient time for this court to provide a first-tier review prior to the issues being heard by the Supreme Court of Florida.

As with all "pass-through" certifications, the Florida Supreme Court will have the ability to accept the certification and hear the case or decline the certification and send the case back down to the district court. I suspect we'll know very soon what's going to happen.

You can read the proposed constitutional amendment, along with the title and summary for this year's ballot, by looking here.

...posted by ⊥ 8:15 AM ⊥ #

Elian Decision

The Sun-Sentinel reports here on a federal district court's ruling that ends a suit by Elian Gonzalez's family over the raid that seized the boy from his relatives' home.

...posted by ⊥ 8:03 AM ⊥ #

Second District: Custody Concerns

Those involved in custody battles may wish to keep in mind that a party's conduct between the time of the trial court's order and the decision on appeal may well influence the result on appeal. At least, that is what seems to have happened in this case from the Second District.

The eyes of equity see far indeed.

...posted by ⊥ 8:01 AM ⊥ #

Second District: Bonds Without Evidentiary Hearings

This point is not new but it is still worth making: if an injunction bond is ordered without an evidentiary hearing on its amount, the enjoined party may not be limited to recovering only up to the bond amount if the injunction is later determined to have been wrongfully issued. Check out this case from the Second District for a bit more detail.

...posted by ⊥ 8:00 AM ⊥ #

Third District: Agreements In Principle

For anyone litigating a case about an agreement to agree, or an agreement in principle, this decision from the Third District may be of interest to you.

...posted by ⊥ 7:59 AM ⊥ #

Second District: Preservation of Error

A reminder here from the Second District: if a trial court fails to give you the opportunity to examine a prospective juror before dismissing the person for cause, a contemporaneous objection is not sufficient to preserve the issue for appeal. You should also renew the objection when the jury is sworn (and certainly not affirmatively accept the jury as happened in this case).

...posted by ⊥ 7:58 AM ⊥ #

Second District: Tolling Time and Attorneys Not of Record

This decision from the Second District offers two concise lessons. First, in a criminal case, a motion to modify a sentence does not toll the time for taking an appeal. Second, in any case, a motion filed by an attorney not of record is a nullity. The court implied that the latter point may be in conflict with a 1998 decision by the Fifth District.

...posted by ⊥ 7:56 AM ⊥ #

Wednesday, August 25, 2004

Justice Ervin Passes

The Tallahassee Democrat is reporting here that former Chief Justice Richard Ervin passed away yesterday. A truly great Floridian, he served on the Florida Supreme Court from 1964 to 1975 and as the state's Attorney General from 1949 to 1964. He was 99.

...posted by ⊥ 3:11 PM ⊥ #

First District: Access to Courts

If you are currently incarcerated, then this opinion from the First District is a must-read for you. The court considered inmates' claims that Florida's prison system deprived them of the right of access to courts guaranteed by Article I, section 21, of the Florida Constitution. The court rejected the claims on their merits, but not until after making some significant decisions about the scope of this Florida right, such as that the state must provide affirmative assistance to prisoners regarding all types of claims that might be filed in Florida's courts, including those based on federal law.

...posted by ⊥ 8:00 AM ⊥ #

Eleventh Circuit: Forum Non Conveniens

If you're interested in forum non conveniens on the federal level, where the issue is basically whether it's best to litigate a case in America or elsewhere, then you will want to check out this decision released yesterday by the Eleventh Circuit. A divided court reversed a decision to dismiss a suit involving Florida plaintiffs and a foreign defendant. The interplay between the majority and dissent is interesting (the dissent's note 4 has a particular wit) and highlights the problems that can arise when a district court (or, here, a magistrate judge) applies a legal test involving factors and presumptions without expressly evaluating those issues.

...posted by ⊥ 6:49 AM ⊥ #

Tuesday, August 24, 2004

Schiavo News

Here is a short piece tucked away in the election coverage section of today's St. Pete Times. It regards Judge George Greer, the judge who has spent many years presiding over the Terri Schiavo guardianship case and who is being challenged in next week's election by newcomer Jan Govan.

The story mentions a claim from Judge Greer that Govan is attempting to hide the fact he is a man by not using his picture in advertisements or on his web site. "Jan" is not gender specific, and, as the story mentions, there is a school of thought that women generally have an edge over men in judicial elections.

I will comment that, having looked at Govan's web site, the lack of a picture is amusing. I don't recall ever seeing a candidate's web page that didn't display the candidate's picture.

...posted by ⊥ 9:17 AM ⊥ #

Fifth District: Nursing Home Claims

Those interested in nursing home litigation may want to check out this order from the Fifth District. In a case involving a former version of Chapter 400 (which did not make statutory residents' rights claims exclusive remedies), the court clarified that the estate's negligence and residents' rights claims were so similar that any error in instructing the jury on the statutory claim was harmless in light of the jury's verdict against the estate on the negligence claim.

...posted by ⊥ 7:10 AM ⊥ #

Eleventh Circuit: Blakely

Yesterday, the Eleventh Circuit issued this latest order involving Blakely v. Washington, the United States Supreme Court's recent decision holding that states may not increase sentences beyond statutory maximums based on facts not submitted to a jury and proved beyond a reasonable doubt.

Yesterday's order makes clear that, in appeals already underway, motions for leave to file substitute briefs raising Blakely claims for the first time will be denied.

...posted by ⊥ 6:15 AM ⊥ #

Monday, August 23, 2004

Friday Florida Law Trivia Answer

Many thanks to all those who sent in their thoughts on Friday's Florida Law Trivia question. I received some very interesting and creative thoughts, though no one hit upon the angle that my answer will explore.

Keep in mind that the question is somewhat hypothetical because the Bible-reading program I mentioned would be plainly unconstitutional under federal law and there would be no reason to consider its constitutionality under Florida law. That said, the short answer to the question is that, while it is likely that if asked the Florida Supreme Court would now hold the described program unconstitutional under Article I, section 3 of the Florida Constitution, that court has previously held that such programs do not violate the religious guarantees of the Florida Constitution, and that decision has never been receded from with regard to Florida's constitution.

Before I discuss that decision, let me pause for a moment to explain the relevance of all this. As you probably know, last week in this case, the First District held Florida's Opportunity Scholarship Program unconstitutional under Article I, section 3's no-aid provision. The no-aid provision states:

No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.

This language was first written into our Constitution in 1885. In the context of the OSP, which provides scholarship money to parents of children in failing schools to be used at (essentially) any other school the parents chose, the ultimate issue regarding the no-aid provision boils down to this: does it prevent any public money from going to religious institutions, so that a program like the OSP is unconstitutional because parents might choose to use the scholarship money at religious schools, or does the language only prohibit the state and local governments from implementing programs that are designed to provide funds to religious institutions, somethig the OSP was not intended to do?

An answer I've commonly heard to this question is that all we need to do is focus on the simple text of the 1885 provision's language. That's a mistake, because it ignores how Florida has historically thought of its various constitutional provisions separating church and state. That's where Friday's question comes in: to give an example of how the historical views of such language can differ from our current views.

So, back to the case I mentioned. It was a 1962 case entitled Chamberlin v. Dade County Board of Public Instruction. It and a companion case were brought by agnostic, Jewish, and Unitarian parents who challenged, under the state and federal constitutions, a state statute (section 231.09(2)) which then provided that Florida's public schools shall:

(2) BIBLE READING.-- Have, once every school day, readings in the presence of the pupils from the Holy Bible, without sectarian comment.

The parents also challenged Dade County school practices involving the display of religious symbols and recitation of the Lord's Prayer, grace, and other religious prayers. Dade County permitted students to be excused from these events upon parental request.

The parents relied upon then-recent United States Supreme Court cases that broadly discussed how the federal Establishment Clause creates a sort of "wall of separation" between "Church" and "State." Amazingly, the Florida Supreme Court didn't agree and rejected the parents' challenge. After quoting some of the U.S. Supreme Court's broad language, the Florida court said:

We are not impressed with the language quoted as being definitive of the 'establishment' clause. It goes far beyond the purpose and intent of the authors and beyond any reasonable application to the practical facts of every day life in this country. We feel that the broad language quoted must, in the course of time, be further receded from if weight is to be accorded the true purpose of the First Amendment.

The Florida court went on to explain its view that governments were not prohibited from recognizing religion where such can be done without favoring different religious beliefs, organizations, or sects, and how Christian principles were a fundamental part of the administration of the common law. The court cited a horde of examples of religious practices from the federal realm, including the use of chaplains in the military, Bible readings and recitation of the Lord's Prayer in D.C. schools, the invocation of divine aid in the oaths of federal offices, the use of "In God We Trust" on the currency, the language of the National Anthem, and the exemption of church property from taxation. Here are some brief excerpts of the court's rather harsh language:

To say that the vast majority of students in the Dade County public school system are to be foreclosed of the privilege of living a few moments each day with the words of the Bible, the greatest of all literature, or of observing in the classroom, if such were possible, the magnificent painting of the Last Supper, or listening to Caruso's recording of Adeste Fidelis, because a minority might suffer some imagined and nebulous confusion, is to approach the ridiculous.
* * * We believe it necessary that public education give due recognition to the place of religion and the culture and convictions of our people but that in doing so the principle of separation of church and state must be safeguarded.
* * * We feel it equally imperative that we preserve the safeguards of the Constitution against all violations of the 'establishment' and 'free exercise' clauses and, at the same time, preserve those clauses and the rights of the States and the people thereunder against weasel-worded constructions and distinctions designed to impute them either more or less than was originally intended.

Ultimately, the court determined that the Bible readings, prayer recitations, and other religiously-based practices did not violate the plaintiffs' constitutional rights under either the Florida or the federal constitution.

Wait, though. It gets better. The United States Supreme Court reversed the Florida court's decision in light of subsequent U.S. Supreme Court cases regarding the Establishment Clause and the constitutional propriety of religious instruction in schools. (The one-line decision is available here). The case then went back to the Florida Supreme Court for further consideration.

Incredibly, the Florida court again held that there was nothing unconstitutional about Dade County's Bible readings and prayer practices. Citing the Florida Legislature's 1925 statement explaining that the Bible reading provision was enacted to promote "good moral training," the court concluded that the purpose of the challenged practices was "secular rather than sectarian":

It is our conclusion that the statue was founded upon secular rather than sectarian considerations and is to be construed as was the Sunday Closing Law in [McGowan v. State of Maryland, 366 U.S. 420 (1960)]. The statute, designed to require moral training and the inculcation of good citizenship, does not offend the establishment clause of the Constitution as written and intended by the authors. The accommodation of religious beliefs is secondary to the intent of the Legislators.

Perhaps it's no surprise that the case was again appealed to the United States Supreme Court, and again that court reversed the Florida decision. This time the high court devoted three sentences to the task. When the case returned to the Florida Supreme Court, the court was a tad indignant at the U.S. court's refusal even to engage in any analysis regarding Florida's situation and the situations in other cases:

In our disposition of the matter we would have been grateful for the assistance a considered opinion rationalizing the dissimilar facts would have afforded . . . . We construe the decision to mean nothing more and do less than that prayer and devotional Bible reading in the public schools pursuant to a statute or as sponsored by the school authorities are violative of the Federal Constitution, as construed by the Supreme Court of the United States.

The Florida court concluded by affirming its original decision in all other respects. Thus, the Bible study and prayer practices were again found to be constitutional under the Florida Constitution.

Wow. Now, there is a lot more to an analysis of whether the holdings from the Chamberlin opinions can fairly be seen as binding interpretations of Florida's current constitution, but I'm going to stop here for space purposes and because telling this much of the story is enough to help make the point I set out to make. Our current notion of church/state separation is based on federal case law from the last 50 or 60 years. To interpret the text of Florida's no-aid provision simply in light of our current understanding of how federal law separates church and state is to ignore some very interesting and very relevant history. You cannot understand what the no-aid provision was intended to mean without understanding that history.

...posted by ⊥ 10:50 AM ⊥ #

Trivial Answer

It's coming...

...posted by ⊥ 5:15 AM ⊥ #

Second District: Settlement Proposals

Rule 1.442 instructs litigants to serve proposals for settlement but not to file them unless they are accepted or filing is necessary to enforce the rule or a statute.

Let's repeat the really important part: DO NOT JUST FILE YOUR SETTLEMENT PROPOSAL. DO NOT JUST FILE YOUR SETTLEMENT PROPOSAL. Or else.

...posted by ⊥ 5:13 AM ⊥ #

Questions, questions

The rule of civil procedure that grants state actors an automatic stay when appealing adverse trial court decisions would, on its face, seem to apply in the context of a sexual predator involuntary commitment proceeding. Previously, the First District held it applies in such circumstances, but on Friday the Fifth District disagreed, saying such use is too far afield of the rule's purpose and holding that an automatic stay is not available to continue detaining a person the state seeks to designate as a sexual predator. The decision, available here, also certifies the following to the Florida Supreme Court as a question of great public importance:

WHETHER THE AUTOMATIC STAY PROVISION SET FORTH IN RULE 9.310 OF THE FLORIDA RULES OF APPELLATE PROCEDURE [APPLIES] TO CIVIL COMMITMENT PROCEEDINGS INSTITUTED UNDER THE JIMMY RYCE ACT.

Chief Judge Sawaya offered an interesting and detailed partial concurrence and partial dissent.

...posted by ⊥ 5:07 AM ⊥ #

Friday, August 20, 2004

Friday Florida Law Trivia!

Okay, after a hurricane-induced break, Friday Florida Law Trivia is back this week. The question is intended for everyone, and I'd love to hear responses, whether you're a bankruptcy lawyer in Miami, a home schooler in Pensacola, an office worker in Tampa, or a constitutional scholar in Tallahassee. I won't publish anything I receive (unless you ask me to, and even then I probably won't), so please send me your thoughts in response to this question:

If a county school board decided tomorrow to require a few minutes of Bible instruction in class every day, would that be unlawful under the Florida Constitution, and if so, under what provision?

Good luck. I expect to post the answer over the weekend. Meanwhile, if you don't know the answer, ask a friend. Or two. You never know who'll know.

...posted by ⊥ 9:02 AM ⊥ #

Trivial Anticipation

I've asked Hunter to let me post this week's trivia question. I think you'll really enjoy it. I have to run into a meeting, though, and will post it afterwards.

...posted by ⊥ 8:31 AM ⊥ #

Eleventh Circuit: Another Economic Loss Certification

In this decision released yesterday by the Eleventh Circuit, the court certified a question to the Georgia Supreme Court regarding that state's economic loss law. The certified question was simple and case-specific:

Can Lowe's recover lost profits when its own property was damaged, but additional property, also damaged but not belonging to Lowe's was necessary to complete the Relocation Store upon which the lost profit award was premised?

Compare that question to those the Eleventh Circuit asked Florida in a decision released about a year ago, questions outlined in this earlier Abstract Appeal post. The court nearly asked when Florida even follows economic loss principles. Makes you wonder how clear Florida's case law has been.

By the way, as a bit of personal trivia, the economic loss doctrine is among my absolute favorite legal topics. It's great.

...posted by ⊥ 8:20 AM ⊥ #

Eleventh Circuit: Compounding Prosecutions

When you finish reading this short decision from the Eleventh Circuit, you will be able to use "theftbote" in a sentence. That's a good thing.

...posted by ⊥ 8:19 AM ⊥ #

Fourth District: Payday Loans

In 2001, the Legislature amended Florida's Money Transmitters' Code to address payday lending, which generally involves writing a check to a business that agrees, for a fee, not to cash the check for a period of time. The transaction is essentially a short-term loan. The amendments authorized this form of payday lending, with some fairly rigid guidelines. A significant question has arisen, however, about whether payday lending was permissible prior to the 2001 amendments. The Transmitters' Code at that time addressed check-cashing, but is payday lending check-cashing, or is it something more?

In 2002, the Fifth District issued a divided opinion, available here, in which the majority concluded that payday lending had been authorized under the prior code. The court saw the 2001 amendments as clarifying the former law. Judge Griffin dissented.

It bears mention that the plaintiff in the Fifth District case had sued her payday lender. She argued that the lender's fee structure violated Florida's usury laws and that she was entitled to a return of all the money she borrowed plus penalties. When the Fifth District concluded that the transactions were authorized, the plaintiff's usury claim failed.

Last week, in a case brought by the same plaintiff, the Fourth District agreed with Judge Griffin. In a decision available here, the court held that the prior law did not authorize payday lending practices and certified conflict with the Fifth District. The plaintiff's class action suddenly has new life.

...posted by ⊥ 8:08 AM ⊥ #

Eleventh Circuit: Interest-Free Decision

In this decision, the Eleventh Circuit held that Alabama state prisoners lack a takings claim for not receiving interest on their bank deposits. Under Alabama law, prisoners have no state property right to such interest, and, absent an interest in interest, no deprivation of property occurs.

I just can't bring myself to call all this interesting...

...posted by ⊥ 8:06 AM ⊥ #

Eleventh Circuit: Belated Blakely

The Eleventh Circuit is working its way along the path lit this last term by Blakely v. Washington, the United States Supreme Court's decision holding that states may not increase sentences beyond statutory maximums based on facts not submitted to a jury and proved beyond a reasonable doubt.

As you may know, one of the larger issues created by the decision is if and how to apply it to cases already adjudicated and cases still in the appellate pipeline. In this order, the Eleventh Circuit rejected a defendant's post-oral argument, pre-decision effort to file a supplemental brief raising a Blakely claim.

...posted by ⊥ 7:57 AM ⊥ #

Eleventh Circuit: Death Row's Not Too Hot

While this decision from the Eleventh Circuit is an interesting read for its discussions of prison conditions case law and class action procedures in prisoner cases, the bottom line is that generally mid-80's temperatures in Florida's death row prison unit do not violate the Cruel and Unusual Punishment Clause of the Eighth Amendment.

...posted by ⊥ 7:55 AM ⊥ #

Eleventh Circuit: Family and Medical Leave Act Case

I really respect and enjoy short opinions, and this decision from the Eleventh Circuit is one of them. The court considered an employee's claim that her employer retaliated against her after she sought maternity leave under the Family and Medical Leave Act. At the time of her request, though, she was ineligible for leave, and she remained ineligible for leave at the time her requested leave would have begun. Under these circumstances, the court held that the employee did not attempt to exercise a right provided by the act, and thus she could not bring a retaliation claim under the act. The court affirmed a summary judgment for the employer.

...posted by ⊥ 7:52 AM ⊥ #

Eleventh Circuit: Judge Ungaro's Nazi Regime Suit

Earlier this month, in this rather fascinating decision, the Eleventh Circuit affirmed a summary judgment granted two banks in a suit brought by Southern District of Florida Judge Ursula Ungaro (Ungaro-Benages at the time of the litigation). The case involved her claims that the banks, complicit in Germany's Aryanization efforts, stole her family's German manufacturing business prior to World War II.

...posted by ⊥ 7:50 AM ⊥ #

Thursday, August 19, 2004

High-Speed Rail Amendment Amendment

Yesterday, the Florida Supreme Court entered this order approving the revised financial impact statement that will accompany, on the ballot, this year's proposal regarding a high-speed rail line. You can read the current constitutional language, which voters approved in 2000 and which mandates creation of a high-speed rail line, by looking here. You can read this year's proposal to repeal that amendment by looking here, and you can read the now-approved financial impact statement by looking here.

...posted by ⊥ 8:28 AM ⊥ #

Amici Notes

The Florida Supreme Court recently entered multiple orders denying potential amici the ability to participate in two high profile cases: the Engle appeal (the giant tobacco appeal involving the largest verdict in history) and the Schiavo appeal (the challenge to the law that permitted the Governor to intervene in Terri's case and order her feeding tube restored).

In one instance, the court made it clear that the motion for leave to file an amicus curiae brief was denied because it was not signed by a member of The Florida Bar. (That was later corrected and the motion granted.) In another instance, a known supporter of the Schindler family who served his brief after the deadline for supporting the Governor claimed, somewhat strangely, to be supporting the other side, and in any event the brief did not meet the content requirements of Rule 9.370(b). That motion was denied, too. In Engle, a motion may have been denied because the movants were actually class members represented by class counsel.

By all appearances, though, a number of motions for leave to appear were denied based on the content of the brief, rather than the content of the motion. It's difficult to tell because it seems the court did not post briefs that were submitted as attachments to the motions for leave to file, as opposed to being filed separately from the motion. Compare this en masse denial in Engle (which denied, for example, this, this, and this motion for leave to file) with this order (which granted, for example, this, this, and this motion).

...posted by ⊥ 8:10 AM ⊥ #

Wednesday, August 18, 2004

Engle Appeal

The plaintiffs in the giant Engle class action -- the case with the $145 billion verdict against the cigarrette manufacturers -- have filed their reply brief. It's worth a read, and it's here.

...posted by ⊥ 1:53 PM ⊥ #

Election Suit, Straight To The Top

Today's Miami Herald has this story about a lawsuit filed yesterday in the Florida Supreme Court. According to the story, several workers' unions seek to invalidate a state law that requires people casting provisional ballots in an election to do so in the right precinct. Provisional ballots are given to persons who are not listed on the voting rolls but who claim to be registered voters in the county. Apparently, the complaint is that precincts change and voters may not know at which precinct they should appear to vote.

Three huge issues quickly appear when you examine the suit, which you can do by looking here.

First, why is this case being filed in the state supreme court? A look at the filing shows that it is actually a petition for a writ of mandamus which asks the court to require elections supervisors to count provisional votes filed in the right county but the wrong precinct. The petition states that immediate resolution by the state supreme court is required because of the pending statewide election, which is now just over two months away. The law being challenged, though, was enacted in 2001, in response to Florida's 2000 election crisis and assertions that people registered to vote in a county were prevented from doing so because they were somehow not on the voting rolls.

Second, the suit mentions no individual litigant who has suffered or will suffer any harm from the precinct requirement. As a result, the issue of whether the petitioning unions have associational standing will loom large.

Third, the ultimate question on the merits will be whether a person registered to vote in a county, but who for some reason is not on the voting rolls available at the voting site, is deprived of the right to vote by being able to cast a provisional ballot only in the correct precinct.

This will be interesting to watch.

...posted by ⊥ 8:15 AM ⊥ #

Fourth District: Untimely Probate Appeals

Probate lawyers and anyone with a claim against an estate will likely want to review this decision from the Fourth District. The case involved an estate that brought a wrongful death claim and settled it for $750,000, with only $50,000 of that sum being directed to the estate itself. The settlement was approved in March 2003. A person with a claim against the estate appealed the approval order but later dismissed the appeal.

A few months after the approval order was entered, the probate court granted a petition for discharge, agreeing with the estate that while the claimant's claim remained outstanding, the estate had no assets from which to pay any judgment. The claimant appealed the discharge order, but the crux of the appeal was a challenge to the order approving the low settlement for the estate. The appellate court found that the claimant should have appealed the approval order and that the later appeal was untimely as to that order. The court affirmed the discharge order.

...posted by ⊥ 8:10 AM ⊥ #

Fourth District: Delinquency Orders

In this decision, the Fourth District, sitting en banc, receded from a prior holding that separate orders should be entered in delinquency proceedings for each underlying offense. One order is sufficient, as long as it separately reflects each offense's disposition. Interestingly, the court's prior position was aligned with the Second District's current position, which may make you wonder whether the two districts are now in conflict. Hmmm.

...posted by ⊥ 8:04 AM ⊥ #

Tuesday, August 17, 2004

Schiavo Thoughts

I said yesterday that I would break my particular comments on the Schiavo briefing into discrete parts. Here goes. By the way, the purpose of doing this isn't to offer gratuitous criticism. Rather, it's to help people who do not normally read appellate briefs have a bit better understanding of what it is they are reading, including what might be meaningful to the court and what might be considered a strong or weak argument. It should also help people who watch the oral argument in the case have a better understanding of what will and will not happen.

My first specific point is rather narrow, and it's aimed at both sides. As Governor Bush explains in his Reply Brief (page 1), he filed in the trial court "numerous affidavits signed by legislators, describing their concerns and intent in proposing and in voting for the Act." Michael Schiavo, in turn, cites in his Answer Brief (page 2) to recent newspaper articles saying that "key legislators" now express "regret" over supporting the law and that their votes were pressured by physical and political threats. So how much weight will the legislators' comments carry with the court?

In all likelihood, none whatsoever. Though it is a rare topic, Florida case law consistently holds that individual legislators' after-the-fact statements about why a law passed are of little, if any, meaning. As the Fifth District explained in its 1997 decision in State v. Patterson, 694 So. 2d 55, 58 n.3 (Fla. 5th DCA 1997):

[T]he testimony of individual members of the legislature as to what they intended to accomplish is of doubtful worth in determining legislative intent and may not even be admissible.

The same point was made many decades earlier by the Florida Supreme Court when it decided Security Feed and Seed Co. v. Lee, 189 So. 869, 870 (Fla. 1939):

We do not overlook the support given appellants' contention by affidavits of members of the Senate as to what they intended to accomplish by the act brought in question. The law appears settled that such testimony is of doubtful verity if at all admissible to show what was intended by the Act.

The rationale here is that statements made after a law is passed are unreliable opinions about what happened. Statements actually made to a legislative body before a law is passed, however, are evidence of what the legislators had before them when making their decision. Before-the-fact statements are probative of legislative intent; after-the-fact statements are not.

If the post-hoc views of legislators are irrelevant, why bring them up in the case? Well, maybe the parties are thinking this will be the case where the Supreme Court accepts such materials as evidence, but that's unlikely, and, besides, legislative intent is hardly an issue at all in this case. (Intent is usually an issue where it's unclear what a law means, and there's almost no dispute here over what "Terri's Law" means.) More likely, these materials were included simply to help support each side's claim to the moral high ground -- a matter directly relevant to nothing here but which can make a party feel better about a position, and a judge feel better about a decision.

...posted by ⊥ 5:23 PM ⊥ #

Voucher Decision

For a sampling of this morning's local coverage on yesterday's Bush v. Holmes decision, check out the stories at these links to the St. Pete Times, the Palm Beach Post, the Miami Herald, and the Tallahassee Democrat.

...posted by ⊥ 8:25 AM ⊥ #

Appellate Practice Reminder!!

Attention appellate folks: the monthly CLE call for The Florida Bar's Appellate Practice Section will be held today at 12:10. Be sure to grab your lunch and attend.

...posted by ⊥ 8:20 AM ⊥ #

Appellate Disqualification

If you're bothered by a judicial ruling and are contemplating seeking the judge's disqualification, repeat after me: neither an adverse, supposedly incorrect ruling nor a gut-level impression of bias is any basis to disqualify a judge. For more, check out this order in which Judge Northcutt declines to recuse himself in a matter.

...posted by ⊥ 8:19 AM ⊥ #

Third District: Due Process and Dog Ownership

The Bal Harbour homeowner in this case argued that the town's two dog per household limit could not constitutionally apply to him because he owned four dogs prior to the adoption of the ordinance at issue. It could and it does, said the Third District.

I'll add that being constitutional and being wise are two distinctly different concepts. Courts address one and politicians the other.

...posted by ⊥ 8:04 AM ⊥ #

Second District: Headlong Drive-away?

When a person sees law enforcement officials and suddenly breaks into flight, on foot, the officials have a constitutionally permissible basis to stop the person. But what if the person flees in a vehicle? Uh, nope -- at least where the driver obeys traffic laws. Check out the Second District's decision in this case. In an interesting dissent, Judge Canady disagreed and explained that the cumulative evidence in the case, including the vehicle's "hasty departure," provided a reasonable suspicion to justify a stop.

...posted by ⊥ 8:00 AM ⊥ #

Third District: En Banc Miss

A reminder here from the Third District: just because the court agrees to rehear a case en banc does not mean the panel's result is going to change. In the case, the 10-judge en banc court heard oral argument and then decided to deny the en banc motion, letting the panel deision stand. Four judges dissented.

...posted by ⊥ 7:55 AM ⊥ #

Second District: Social Security Numbers & Privacy Rights

Here's a case for Florida constitutional law fans. A Pinellas County couple has sued state and county tax officials, claiming a state requirement that property owners divulge their social security numbers to obtain homestead exemptions infringes on the owners' right of privacy under the Florida Constitution. The trial court essentially granted the officials summary judgment on the claim, finding that privacy interests were not infringed or even implicated by the requirement.

Yesterday, however, the Second District reversed. In this decision, the appellate court held that requiring citizens to disclose their social security clearly implicates the constitutional right of privacy, and the court remanded for a determination of whether the requirement satisfies the strict scrutiny burdens of a compelling state interest furthered through the least intrusive means.

...posted by ⊥ 7:54 AM ⊥ #

Third District: Legislative Clarifications

In this case, the Third District determined that a "cavalcade" of litigation prompted a legislative correction to a rather new statute and thus the correction should be seen as a clarification of original intent. The case involved the rather popular subject of insurance payments for MRI diagnostic work.

...posted by ⊥ 7:52 AM ⊥ #

Second District: Sovereign Immunity

If you are interested in sovereign immunity case law, check out this decision from the Second District, which determined that doctors employed by a corporation controlled by a sovereignly immune hospital shared the hospital's sovereign immunity. The majority and concurring opinions disagreed over the scope of the court's holding.

...posted by ⊥ 7:48 AM ⊥ #

Monday, August 16, 2004

First District: Vouchers and Florida's Blaine Amendment

The First District dropped a bomb today: the decision in Bush v. Holmes declares Florida's Opportunity Scholarship Program unconstitutional under Article I, section 3, of the Florida Constitution. This case is popularly known as the school voucher case, and the court's decision will surely make headlines in tomorrow's papers across the state.

To give a little background, the OSP is a program that gives vouchers to parents of kids in Florida's failing schools. The vouchers may be used at any school the parents choose, so long as the school agrees to participate in the program and meets certain minimal requirements. The program does not discriminate among religious or nonreligious schools, so parents are free to chose either.

The program was challenged as violating the well known (but little understood) concept that church and state must be separated, a principle found in both the federal and the Florida constitutions. The federal challenge was lost when the United States Supreme Court decided Zelman v. Simmons-Harris, which held that a similar program in Ohio did not violate the federal Establishment Clause. The case then came down to the meaning of the Florida Constitution's "no-aid provision," which states:

No revenue of the state . . . shall ever be taken from the public treasury directly or indirectly in aid . . . of any sectarian institution.

Today, the First District held that, under this language, the OSP is unconstitutional because it permits public monies to be used at religious schools.

The panel split its votes, with Judge Van Nortwick writing the 52-page majority opinion, Judge Smith joining it, and Judge Polsten dissenting with an opinion.

While I tend to be rather impartial on this blog, I am going to make an exception in this case. I respect Judge Van Nortwick very much, but I believe he is simply wrong, and largely for the reasons set out in Judge Polsten's dissent. I should point out that I understand the arguments in the case rather well -- though the opinion does not mention our names, Tom Warner and I wrote the Attorney General's initial and reply briefs in this case supporting the law. At the time, we were serving, respectively, as Solicitor General and Deputy Solicitor General of Florida. I stand by our brief.

This is a fascinating topic that should interest all of Florida's citizens because it has the potential to impact state programs across the board, from college scholarships to building restoration funds to meal programs.

The case now makes it way to the Florida Supreme Court. Curiously, though the high court would have had jurisdiction over the case anyway, the majority opinion concludes with the following question certified as one of great public importance:

Does the Florida Opportunity Scholarship Program, section 229.0537, Florida Statutes (1999), violate article I, section 3 of the Florida Constitution?

...posted by ⊥ 11:55 AM ⊥ #

Schiavo Thoughts: Briefing

As many of you know, Governor Bush's Reply Brief in the Schiavo constitutional challenge is available here. In reading the brief, it may be helpful to know that the Reply Brief responds to Michael Schiavo's Answer Brief, which you can find here, and that the answer brief is in turn a response to the Governor's Initial Brief, which is available here. So we have three briefs: an initial brief, an answer brief, and a reply brief. That's standard fare in an appeal. It's also about the only thing about this case that can be called "standard."

Take, for instance, the general structure of the briefs. Ordinarily, the appellant in a case is seeking relief from a judgment by a lower court. The appellant's initial brief usually tracks the legal rulings being appealed, picking them apart and demonstrating why they were legally erroneous. The appellee's answer brief then usually tracks the initial brief, explaining why the appellant is incorrect and why the trial court reached the correct conclusion. Finally, the appellant's reply brief attempts to expose the flaws in the answer brief, thereby reexposing the failings in, and lack of support for, the order on appeal.

Little, if any, of that has occurred here. Let's go back to Judge Baird's order, the one on appeal -- it's available here. Judge Baird found "Terri's Law" to be unconstitutional on four grounds. The first two had nothing to do with Terri in particular -- they were rulings that the law is unconstitutional "on its face," which is a legal term meaning that anyone looking at the law can see that it is simply unconstitutional in all circumstances. Judge Baird first determined that the law violated the constitutional separation of powers principle by giving the Governor too much unlimited authority, and then that the law violated the constitutional privacy rights of any ward affected by the Governor's decisions. Judge Baird's next two rulings were specific to Terri -- his third ruling was that the law again violated separation of powers principles by effectively rescinding the judiciary's earlier decisions in Terri's case, and, finally, he ruled that the law violated due process by retroactively redefining Terri's rights.

Whew. The Governor has to overcome all four of those rulings in order for Judge Baird's decision to be reversed, and Judge Baird never addressed numerous other constitutional challenges to Terri's law. Those challenges will need to be determined, too, either by an appellate court or by Judge Baird, before Michael Schiavo's constitutional challenge will be defeated.

With that background, things may seem strange when you look at the structure of the briefs on appeal. The argument section of the initial brief begins with a 20-page segment meant to undermine, but not directly address, Judge Baird's conclusions on his third and fourth rulings. Judge Baird's first two rulings are addressed only in passing. In response, the answer brief does not at all track the organization of the initial brief, instead laying out an argument that supports Judge Baird's decisions but is largely dismissive of the initial brief's focus. Finally, the reply brief sets out yet another organizational scheme that focuses once again on the themes set forth in the initial brief but basically ignores the answer brief's points.

The bottom line here is that these briefs are not typical. They appear to be written not only to the court but to the media and, ultimately, one might suppose, supporters.

That's the overview. To keep the length of these posts reasonable, I'm going to break some substantive thoughts down into discrete areas and post them individually.

...posted by ⊥ 9:16 AM ⊥ #

Back to Business

Whew. That was a wild weekend. Debbie and I spent Thursday pm and much of Friday getting our condo unit and the building Charley-proofed. That was exhausting, which I think explains why everyone in the building took a nap Friday afternoon when we learned the storm was going to hit south of St. Petersburg. We then spent Saturday undoing all the "cleaning" we did Friday.

It's perhaps a positive thing to say that, in the end, the weekend's biggest tragedy was that I couldn't visit my mom yesterday for her birthday. My folks live just north of Orlando and that entire area is a mess -- bad water, scattered power, no phone, no cable, no internet. They're ok, though.

As for my little blog here, it's finally going to be getting back up to pace today. I'll start with my belated thoughts on the Schiavo briefing.

...posted by ⊥ 9:06 AM ⊥ #

Thursday, August 12, 2004

Evacuation?

I have the pleasure of looking out my office window onto Tampa Bay, and it it sure looks like a nice day. Too bad Charley is making things difficult. Pinellas County officials just declared a mandatory evacuation for many parts of the county. That includes the building I'm sitting in, but somehow it doesn't include my condo three blocks away, which is actually a block closer to the water. Well, good. I intend to get some reading done. Maybe some blogging too.

...posted by ⊥ 1:00 PM ⊥ #

Schiavo Thoughts

I'm flattered that so many people have sent me emails in the past week asking for, or wondering about, my thoughts on the Schiavo case now that the briefing has finished. I'm going to post some extensive thoughts soon, sort of like a summary of the case. I may even say a little something about the merits of it all, if only to give folks who aren't lawyers some idea of which arguments seem straightforward and which seem, well, to be a bit of a stretch. Look for it either tomorrow or Saturday.

...posted by ⊥ 8:46 AM ⊥ #

Storm Blogger?

Looks like Charley might be on his way to the Tampa Bay area. The sad news for me is that I never got to go grocery shopping last weekend, and Deb was out of town. As a result, we have no groceries at all. Let alone hurricane supplies. I'm not looking forward to the lines at the store tonight.

...posted by ⊥ 8:33 AM ⊥ #

Fifth District: Products Liability

This decision from the Fifth District is a tremendously important opinion for products liability litigation. The case involved a suit against Ford based on an allegedly defective seat belt. In instructing the jury on what makes a product defective, the trial court utilized the risk-utility test, which in short asks jurors to balance the risks presented by a product with its utility. The trial court did not instruct the jury on the consumer expectations test, which asks simply whether a product functioned as a consumer might expect it to function.

The jury returned a verdict for Ford, but the Fifth District reversed. The court held that the consumer expectations test is a means to define a defective product under Florida law, at least in some circumstances, and that in the case of the seat belt in this case that test was appropriate. The court held that, under the circumstances, the jury should have been instructed under both tests.

...posted by ⊥ 8:22 AM ⊥ #

Fourth District: Timely Filing

Here we have a rather strange but interesting decision from the Fourth District. It's strange because the court's opinion takes several paragraphs to announce that the appellant's notice of appeal was not timely filed in the 30-day filing period and therefore the appeal is dismissed. It's interesting because Chief Judge Farmer dissented, saying that the question of timeliness should have been decided through an evidentiary proceeding or, short of that, the appellate court should have applied the mailbox rule and permitted the appeal to go forward.

The pertinent facts of record seem to be these: the notice of appeal was due to be filed on or before May 5, 2004; the appellant sent the notice by overnight mail, in a package labelled "second" day delivery, on May 4, to a satellite office for the circuit court clerk; the appellant claims the mailing was to be standard overnight, not "second" day delivery; the clerk's office stamped the notice as received on May 7. Judge Farmer appears to have done his own work, though, and noted also that the U.S. Postal Service's web site shows that the package was delivered to the recipient on May 5. He suspects that the clerk's office may not have filing intake abilities at the satellite office, though, and that the document may not have been stamped received until it was transported to the clerk's main office.

Very interesting, but it all boils down to a very simple principle: get your notice in the hands of the clerk's office filing room before the end of the 30th day. Period. There is no mailbox rule with regard to filing notices of appeal unless you happen to be incarcerated, in which case you have no lawful ability to see your document into the clerk's hands and the courts will deem a notice filed when it is sent.

...posted by ⊥ 8:18 AM ⊥ #

Fifth District: Proposals for Settlement

If you're following the quickly developing case law regarding the validity of settlement proposals, here is a new decision to note.

The Fifth District first found an offer invalid as ambiguous because it was conditioned on a demonstration that the offeree had the ability to pay.

Separately, though, the court considered whether fees could be recovered under an offer made to settle "all claims" in the litigation where, subsequent to the offer, the claims against the offeror were settled and the case proceeded to trial only on the claims against the offeree. The Fifth District rejected the notion that the final judgment had to "mirror" the claims that were present when the offer was made and held that, given the size of the verdict, the offeror was entitled to fees. Very interesting.

...posted by ⊥ 8:13 AM ⊥ #

Fourth District: Perjury Defense

Did you know that duress is a defense to a perjury charge, as in, yeah, I lied on the stand, but I was fearing for my life...? As the Fourth District explained in this case, duress is a defense, but it only exists where the threat of harm is imminent. A threat of future harm is not sufficient.

...posted by ⊥ 8:11 AM ⊥ #

Fifth District: A Couple of Notes

This case has a strange feature: a footnote dropped off the appellant's name. The note tells us that Herbert Williams, the appellant, is a woman. Herbert's case is also noteworthy, though, because it's another example of being one day late to file something. Here, it was a complaint, which was filed the day after the statutory limitations period ran. However, unlike the situation with filing a notice of appeal, late filing of a complaint can be excused through the doctrine of equitable tolling. Unfortunately for Herbert, the Fifth District found that doctrine inapplicable in this case.

...posted by ⊥ 8:10 AM ⊥ #

Fourth District: Land Use Standing

Well, the Fourth District is once again pointing out how standing in an administrative (here, land use) setting does not necessarily equate to standing for appellate purposes. The standard for participation at the administrative level is often quite low, while standing on appeal is limited, by statute, to those "adversely affected" by the resulting administrative order. You can read this most recent decision here.

It's probably worth mention that, in this case, the appellants had stipulated to standing at the administrative level, and the Fourth District rejected the notion that such a stipulation was applicable to the differing standard for appellate standing. This is surely a point for land use attorneys -- well, all attorneys -- to be mindful of when appearing before an administrative agency. Make sure the record shows how your client will be adversely affected by an unfavorable decision.

...posted by ⊥ 8:08 AM ⊥ #

Fourth District: Probation Plus

If you're interested in the nuances of criminal law, then you'll appreciate the fine point shown in this decision by the Fourth District. Under Florida law, evidence obtained in violation of the Fourth Amendment is not admissible in a probation violation hearing; nor is evidence obtained in violation of Miranda v. Arizona.

...posted by ⊥ 8:06 AM ⊥ #

Wednesday, August 11, 2004

Fourth District: Election Politics

While I was busy last week finishing a terribly interesting intellectual property brief, the Fourth District was finishing U.S. Representative Robert Wexler's lawsuit over the voting machines used in Palm Beach County. You may recall that Rep. Wexler has argued that the touch screen voting system used now in that county violate the state law that under some circumstances requires manual recounts -- manual recounts are basically meaningless in the case of purely electronic votes. The court held that Representative Wexler's arguments can go forward only in an administrative challenge to the rules governing recounts.

The court concluded with an interesting discussion of how reluctant the judiciary is to interfere with a coming election:

We recognize the right to vote is fundamental. However, there is no guarantee of a perfect voting system. See Weber v. Shelley, 347 F.3d 1101, 1105 (9th Cir. 2003). States are entitled to broad leeway in enacting reasonable, evenhanded legislation to ensure that elections are carried out in a fair and orderly manner. See id.

As in Weber, we cannot say the use of a paperless voting system severely restricts the right to vote in the State of Florida. "No balloting system is perfect. Traditional paper ballots, as became evident during the 2000 presidential election, are prone to overvotes, undervotes, 'hanging chads,' and other mechanical and human errors that may thwart voter intent. See generally Bush v. Gore, 531 U.S. 98, 121 S.Ct. 525, 148 L.Ed.2d 388 (2000)." Id. at 1106.

...posted by ⊥ 8:55 PM ⊥ #

Sentencing Guidelines

It's a debate with well established and well understood positions: should trial judges in criminal cases be free to tailor sentences to fit an individual defendant's circumstances, or should the Legislature set a rigid sentencing scheme that ensures consistent punishment based on a fixed set of considerations? The people of this country, speaking through their elected state and federal representatives, have largely agreed that rigid guidelines are generally the best approach. Sentencing guidelines are the rule today, not the exception.

In his concurring opinion in this case, though, Judge Padovano offers his contribution to the position of those who trust the wisdom of the trial judge over formulaic sentencing systems. His concurrence is well written and is worth a read. The case involved a 28-year-old first time offender, female and a single mother of six, who sold a large amount of cocaine to make money for Christmas gifts. The prescribed minimum sentence under the state guidelines was 3 years in prison and a $50,000 fine.

...posted by ⊥ 7:53 AM ⊥ #

Third District: Prohibition Procedure

Here we have a RED ALERT for appellate practitioners, particularly those involved in the annual certification exam. (Ok, maybe not RED.) Perhaps the authors of next year's test will ask something along these lines:

When a party petitions for a writ of prohibition, and the court orders a response from the respondent, what effect does that have on the proceedings in the lower tribunal?

If you know why the answer is "absolutely nothing," then you probably don't need to read this decision from the Third District, and I suspect you'd do fine on the test.

...posted by ⊥ 7:42 AM ⊥ #

Brief Consideration

You know you've written a solid answer brief when this happens.

...posted by ⊥ 7:40 AM ⊥ #

Second District: Foreign Insurers

Looks like Mr. Brannock is headed for the Florida Supreme Court with this case. The Second District certified conflict with a Third District decision over whether Florida's Unauthorized Insurer's Process Law grants jurisdiction over nonresident insurers only when invoked by a Florida resident. Steve represents a Russian insurer over which Florida lacks long-arm jurisdiction, according to the Second District.

Ironic, isn't it, that a foreign company making a jurisdictional argument finds itself litigating that issue at every level of Florida's court system?

...posted by ⊥ 7:28 AM ⊥ #

Onward

Wow. I've finally had a chance to look over last week's cases and there are a few very interesting ones. There's also been some notable legal news to mention. Time (finally!) to start blogging it.

...posted by ⊥ 7:24 AM ⊥ #

Tuesday, August 10, 2004

Lesson Learned

Next time I get into a work crunch, I need to find a way to check my email accounts every other day or so. This is nuts. I hadn't realized how many junk emails I get repeatedly.

...posted by ⊥ 11:10 PM ⊥ #

Back In Blog

Today I welcome myself back to the blog. Whew. It seems like yesterday that I last posted, which might give you an indication of how fast these last several days went. Much work was done. Appellate briefs were completed and dispositive motions were filed. Great legal issues. Can't wait to argue them in court.

To those of you who've been stopping by, thanks very much for your patience. Every once in a while the practice of law just makes blogging impossible. Ah well, I'm back now. Look for posts to begin later today.

...posted by ⊥ 9:23 AM ⊥ #

Friday, August 06, 2004

Trivia Pause

Sorry folks. I just returned to the office having been out of town on business. The large stack of stuff awaiting me is going to keep me from doing a trivia question today. I apologize, and I will do my best to have a very arcane or trivial question for you next week. Hunter.

...posted by ⊥ 9:22 AM ⊥ #

Abstract Pause...?

When I find myself consumed with finishing an appellate brief and temporarily unable to blog, maybe I should refer to the occasion as a brief pause. That would make this a brief pause. Fortunately, Hunter will be stopping by later this morning with the weekly Friday Florida Law Trivia question.

...posted by ⊥ 6:59 AM ⊥ #

Wednesday, August 04, 2004

Mail Call

A reader emailed me today about this story in yesterday's Sun-Sentinel. The story describes a measure the Palm Beach County School Board is considering that would ban cell phones with cameras in them. The reader inquired about whether that would run afoul of this new law which expressly permits students to possess "wireless communications devices" at school.

Certainly if a state law permits students to possess a particular device at school, then a local body cannot effectively overrule that law through a contrary regulation. But does the new law permit the possession of cell phones with cameras? Hmmm.

...posted by ⊥ 2:39 PM ⊥ #

Supreme Court: Rail Amendment Review

Yesterday, the Florida Supreme Court released an opinion regarding the financial impact statement that voters are to read when voting on the proposed constitutional amendment to repeal the previously approved amendment to create a high speed rail across Florida. (whew...) The court's new review in this area is governed by this statute. The court determined that the statement accompanying this particular proposal did not comply with the statute because the statement does not frame the matter in terms of state and local government impact.

You can read the court's opinion here. Under the statute's terms, the statement is now to be redrafted.

...posted by ⊥ 7:51 AM ⊥ #

Eleventh Circuit: RICO

Earlier this week, the Eleventh Circuit released its latest decision regarding RICO -- the Racketeer-Influenced and Corrupt Organizations Act. RICO was implemented decades ago to help prosecutors fight organized crime. Its civil remedy provisions, and its state law progeny, have expanded the law in ways its creators never foresaw, making RICO a perpetually hot issue in civil and criminal circles alike. Anyway, this case will be of interest to RICO fans for its demonstration of how broad and arguably undefined a RICO enterprise can be. The case will also interest anyone looking for an advanced primer on the vocabulary of the prostitution world. Check it out.

...posted by ⊥ 7:30 AM ⊥ #

Tuesday, August 03, 2004

Trials Are Wonderful Things

The AP has this very interesting, almost amusing update on the Tigger trial now going on in Orlando.

...posted by ⊥ 2:44 PM ⊥ #

Fourth District: Creative Insurance Claims

A stolen van was involved in a severe accident. It turns out the van was owned by an entity whose employee left the keys in it and whose general liability insurance excluded claims arising out of the use or entrustment of automobiles. The persons injured in the accident (some through their estates), trying to sue on a theory that would avoid the auto exclusion and permit coverage, claimed that the insured negligently failed to train the employee not to leave the keys in the van.

The insurer sought a declaration of no coverage. The trial court granted the insurer summary judgment and, in this decision, the Fourth District affirmed. The court held that coverage was defeated by the auto exclusion. Interestingly, the court added that there is no such claim as negligently failing to train an employee not to leave keys in a vehicle.

...posted by ⊥ 6:45 AM ⊥ #

Questions, questions

Tort fans will enjoy the issues presented in this case, where the Second District held that a negligence claim can be maintained for emotional damages arising from a laboratory's failure to follow statutory requirements regarding HIV test confidentiality. The court had some concern, though, about the effect of the impact rule and certified the following to the Florida Supreme Court as a question of great public importance:

IS FLORIDA'S IMPACT RULE APPLICABLE IN A CASE IN WHICH IT IS ALLEGED THAT THE INFLICTION OF EMOTIONAL INJURIES HAS RESULTED FROM A CLINICAL LABORATORY'S BREACH OF A DUTY OF CONFIDENTIALITY UNDER SECTION 381.004(3)(f), FLORIDA STATUTES (SUPP. 1996), WITH RESPECT TO HIV TEST INFORMATION?

...posted by ⊥ 6:43 AM ⊥ #

Fifth District: Fee Disputes

If you are involved in a case where no fee agreement exists, you might want to read the Fifth District's decision in this case, which affirmed the recovery of no fees after an attorney successfully obtained a judgment for his client.

...posted by ⊥ 6:43 AM ⊥ #

Third District: Unreasonable Searches

The Third District is not keen on random drug testing, especially when it's done on a defendant by a trial judge, as happened in this case.

...posted by ⊥ 6:42 AM ⊥ #

Second District: Derivative Litigation Representation

Those on either side of the shareholder litigation aisle will probably be interested in this decision from the Second District. A trial court disqualified a plaintiff's trial counsel in a derivative suit against a corporation because that counsel was also representing the plaintiff in an individual suit against the same corporation.

The appellate court found no conflict. Comparing the situation to that in case law under Federal Rule of Civil Procedure 23.1, the Second District emphasized that the issue here was not the plaintiff's adequacy to represent the company's shareholders in the derivative litigation but simply whether a disabling conflict existed due to counsel's representation of the plaintiff in both cases.

Update: The court released a new opinion on rehearing, available here.

...posted by ⊥ 6:38 AM ⊥ #

Fifth District: Rule 1.525

If you do not file a timely motion for costs within 30 days of a judgment being filed, and on appeal the case is remanded for entry of a corrected judgment, then you get a new 30-day window in which to file your motion. See this case from the Fifth District.

...posted by ⊥ 6:37 AM ⊥ #

Fourth District: Declaratory Judgments

There are limits on the use of a declaratory judgment action, and apparently they include determining the parties' rights under a proposed agreement that will never be executed, as in this case from the Fourth District.

...posted by ⊥ 6:37 AM ⊥ #

Fifth District: Nursing Home Litigation

Those involved in nursing home litigation might be interested in this decision from the Fifth District, which granted a writ of certiorari and quashed an order compelling disclosure of a home's grievance logs. The court ordered an in camera inspection and further proceedings.

...posted by ⊥ 6:36 AM ⊥ #

Fourth District: Criminal Instructions

If you practice criminal law, you may be interested in the Fourth District's decision in this case. The court ruled that the failure to instruct on the defendant's defenses (here, justifiable use of nondeadly force and the state's burden in overcoming a self-defense claim) could not be fundamental error and so could not be raised for the first time on appeal.

...posted by ⊥ 6:32 AM ⊥ #

Monday, August 02, 2004

Abstract Pause

I'm a bit late to my own blogging party today. Much fun going on in the appellate world. Be back soon.

...posted by ⊥ 9:39 AM ⊥ #