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Thursday, September 30, 2004
Schiavo News: Legal Sufficiency Hearing
The AP reports here on the hearing held today. Apparently Judge Greer announced he will rule in the coming weeks on the legal sufficiency of the most recent motion to set aside the original judgment on Terri's wishes. The motion is described further in the preceding post.

Schiavo News: A Hearing, A Withdrawal, And A Transcript
Today is the day that Judge Greer is scheduled to hold a hearing on the legal sufficiency of Terri's parents' latest motion to vacate the court's decision regarding Terri's wishes.

You can read the motion here, and you can read a legal memorandum the Schindlers filed supporting the motion here.

Reduced to their essence, the motion and memo argue that the court's decision on whether Terri would chose to continue receiving her feeding tube (the court found she would not) should be revisited in light of a speech Pope John Paul II gave in March in which he spoke about the removal of feeding tubes from people in persistent vegetative states. According to the Schindlers, Terri would not want her feeding tube removed if she knew of this recent speech. You can read the speech here.

Today's hearing regards the legal sufficiency of the motion, meaning that the court is not going to reconsider Terri's wishes but is instead going to determine, as a threshold matter, whether the motion presents a valid legal basis to revisit those wishes.

Also, today's St. Pete Times reports here that Pat Anderson, longtime lead attorney for the Schindlers in their battle with Michael Schiavo, has withdrawn from the case.

Finally, the Schindlers were interviewed on Larry King's show earlier this week. You can read the transcript from the interview here.

Supreme Court: Abortion Funding Ruling Stands
Earlier this week, the Florida Supreme Court declined to review a Third District decision upholding Florida's rules that limit Medicaid reimbursements in the abortion context.

You can view the supreme court's order here. You can also view the district court's decision here.

To provide a more detail on this interesting constitutional case, the following is taken from my September 3, 2003 post on the district court's decision:

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

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

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

Second District: C'Mon Within
Rule 1.525 requires a motion for attorney's fees to be served "within 30 days after the filing of the judgment." Does a motion served before entry of the judgment satisfy the rule? No, said the Second District in this case. Ouch.

First District: Arbitration Meets Administrative Law
If you are interested in administrative law or arbitration law, you will probably want to check out this divided opinion from the First District, which reversed a declaratory statement by the Department of Business and Professional Regulation.

DBPR had determined that a mandatory arbitration provision found in a condominium developer's sale documents violated public policy in Florida and could not be enforced. The court discussed some constitutional (preemption) and appellate (preservation) issues triggered by the parties' respective efforts to reverse and uphold the decision, and the court ultimately decided that the statement was beyond the agency's authority to issue. An industry sighs.

First District: Light Reading
An employee walks out to his car for a cigarette break, and when he opens the car door, his gun falls, fires, and injures him. The employer has a policy against possessing firearms on store premises. The employee seeks workers' compensation. What do you think happens? Learn about the personal comfort and horseplay doctrines as you read the First District's opinion here.

Tuesday, September 28, 2004
Bring Out Your Dead...
And make sure they vote, or sign petition drives. This story from today's St. Pete Times tells the morbid tale of how dead people's signatures keep turning up in the citizen support signature lists for sponsors of Florida's proposed constitutional amendments.

I know. You're shocked. Shocked, you tell me.

We're Not Alone
Apparently Florida is not the only state that will serve as battleground for the doctors v. plaintiffs' lawyers battle on election day. Check out this story from FindLaw.

Stay tuned in the coming weeks for discussion on the Florida proposals discussed in the article.

Eleventh Circuit: Latest Election Suit, Going Forward
Yesterday, the Eleventh Circuit issued the latest judicial decision involving Florida elections. (From somewhere out there, maybe the direction of Tallahassee, I think I hear sighs of relief.) The case involves a suit by U.S. Representative Robert Wexler that challenges Florida's voting system as unconstitutional because the voting machines used by some, but not all, counties do not permit manual recounts. Representative Wexler asserts it is unconstitutional for voting machines in some counties to utilize paper ballots or receipts that can be recounted and for others not to do so. Ultimately, he's seeking to force the 15 Florida counties with paperless electronic voting machines to install paper receipt functionalty on the machines, which would allow manual recounts.

The district court had dismissed the case on abstention grounds based on the pendency of a similar state case filed by Representative Wexler. In a rather brief opinion, available here, the Eleventh Circuit reversed. The case will now go forward on its merits.

To check out a story on the district court's dismissal, see this prior Abstract Appeal post.

For coverage of yesterday's decision, check out the stories in today's Palm Beach Post and Sun-Sentinel.

Appellate Seminar... On Blogs?
October is looking to be a brutal month. Actually, these last few days of September seem rather daunting themselves. If I make it to November, I may find myself heading to New York for DRI's annual Appellate Advocacy Seminar. I believe it's been approved for appellate certification credit in Florida, in addition to the usual CLE credit, and -- would you believe -- one of the presentations will concern appellate practice and the Internet, hosted by the godfather of blawgs himself, Howard Bashman. That's right, a presentation on blogs. By Howard. Gotta love that.

For more info on the seminar, look here.

Eleventh Circuit: Important Case On Appellate Arguments
I don't label too many cases "must reads" for anyone, but here is a case from the Eleventh Circuit that I will call a must-read case for appellate attorneys. It's an important case about whether the Americans With Disabilities Act applies to Southwest Airlines's Internet site.

The district court determined that the web site was not a place of public accommodation under the act. The Eleventh Circuit affirmed, but not on the merits. The circuit court explained that, on appeal, the plaintiffs argued only a modified version of the theory they presented to the district court, and by changing the theory on appeal, they left the court with nothing to review. The modified theory was not preserved for appeal, and the old theory was effectively abandoned.

If yours is an appellate practice, keep this case handy. It's filled with legal authorities to support both components to the circuit court's two-punch decision. Also, keep this case in mind as you craft your appellate arguments. As the decision reminds us, an appellate court's primary function is to review alleged error by the trial judge, not to give the appellant a second day in court.

As a final note, I noticed that the court's opinion (page 11) referred to the plaintiffs' "blue brief." (An appellant's initial brief in the Eleventh Circuit is filed with a blue cover.) By my recollection, and Westlaw's far better recollection, that's the first time a published Eleventh Circuit opinion has made such a reference in text, as opposed to a citation.

Eleventh Circuit: Asserting New Claims At Summary Judgment
This case presents a strangely simple yet significant holding. The Eleventh Circuit explained that a plaintiff may not oppose a motion for summary judgment by asserting a new, unpled claim. The proper procedure is to move to amend the pleadings.

Questions, questions
Everyone has questions. In this case, the Eleventh Circuit had five, all concerning Florida insurance law and all now certified to the Supreme Court of Florida for resolution. Insurance folks, particularly those who represent sureties, will really enjoy these:






Eleventh Circuit: Interesting Prisoner Suit
If you are one of those persons who cannot get enough Eleventh Amendment case law, or you happen to take an interest (maybe a personal one) in either the Americans With Disabilities Act or the Eighth Amendment, then you may want to check out the interesting legal analysis set forth in this decision from the Eleventh Circuit.

Eleventh Circuit: Immigration
Is an expunged state conviction still a conviction for federal immigration purposes? Yes, said the Eleventh Circuit in this case.

Eleventh Circuit: ERISA and Standing
ERISA fans and constitutional standing buffs will enjoy this decision from the Eleventh Circuit, which held that a state which took assignments of its citizens' ERISA claims lacked standing to pursue those claims in federal court.

Eleventh Circuit: Sentencing Guidelines and Blakely
Earlier this month, in this case, the Eleventh Circuit weighed in on the circuit-splitting question of whether the federal sentencing guidelines survive the United States Supreme Court's decision in Blakely v. Washington. The Eleventh Circuit held that the federal guidelines survive Blakely, at least until the U.S. Supreme Court says otherwise.

Blakely held that states may not increase sentences beyond statutory maximums based on facts not submitted to a jury and proved beyond a reasonable doubt. This Fall, in one of its most watched cases, the nation's high court will decide whether the sentencing guidelines stand or fall based on Blakely's rationale.

Over the past couple of weeks, I spent a large amount of time focusing on the Reform Party and Schiavo cases. It's time now to update what's been going on in some of the case law, particularly that from the desks of our local federal friends.

Monday, September 27, 2004
Provisional Ballot Challenge -- Lost
File this under news that got lost somewhere between the Schiavo case and our most recent windy visitor. According to this story from the Palm Beach Post, last week Leon County Circuit Judge L. Ralph Smith entered what sounds like a final order against the petitioners in the provisional ballot challenge. (The article is not clear about the nature of the order or its grounds.)

You may recall this case from this earlier post, where I linked the petition and described a few of its peculiarities. The petitioners in this case originally sought a writ of mandamus from the state supreme court, but the high court transferred the proceeding to the Leon County Circuit Court. For more on the transfer order, check out this prior post.

Word Play
If you are among those attorneys who use Microsoft Word for work but have dutifully purchased a lone copy of Word Perfect to comply with the Florida Supreme Court's rule that briefs and most other filings be submitted in Word Perfect format, you can relax. No more hurrying to convert Word documents to Word Perfect just before getting the document filed. The high court is converting to Word. That's great news for many.

The court first mentioned its conversion on its opinions page a few weeks ago. More recently (somewhere between the Reform Party case and Hurricane Jeanne), the court released an adminstrative order providing details on how this change will affect filings. The court will begin accepting documents in Word format on October 1 (though they'll surely take them now, too), and as of April 1, 2005, Word will be the required format -- except in rules cases, where Word format will become mandatory beginning on January 1.

I suppose those offices that use Word Perfect will now wind up getting a lone copy of Word for conversions. Perhaps someday the court will accept pdf-formatted documents. Then we could all use Adobe Acrobat or freeware like PDF995 to format our documents instantly and uniformly, regardless of what word processor produced them.

You can read the court's administrative order here.

Storm Loss
Looking back on the last six weeks, Floridians have had only one weekend where we weren't fixated on a storm bearing down on the state. All four storms were headed straight for my area -- St. Pete -- at one time or another. Fortunately, they all turned more or less, and, with one exception, we received only a whole lot of tropical storm-level wind and rain. Three of the storms' centers hit less than a county away. Ivan hit the Panhandle.

Seeing all the true devastation so close to Tampa Bay, or on the other coast, I'm not going to complain. We were greatly inconvenienced but not harmed. Still, for someone who keeps track of time for a living, it continues to strike me as bizarre that so much time has just been lost over the past month and a half. And that's if you were lucky.

Friday, September 24, 2004
Schiavo Thoughts
This has taken so long to post because there is so much to say about yesterday's decision declaring "Terri's Law" unconstitutional.

First, let's round up the local media coverage. Local coverage abounds on yesterday's decision, such as the stories in these papers:

Tallhassee Democrat
Tampa Tribune
St. Pete Times

Also, check out the national coverage in these papers:

Florida Times-Union

Now let's see what I can add to all that.

First, my hat is off to the Florida Supreme Court not only for its expeditious ruling but for keeping the ruling unanimous. That is no small feat nowadays. Florida courtwatchers know that our high court is continuously treading farther down the path of multiple concurrences, where justices who agree with the majority offer independent, non-binding thoughts on the issues ruled upon and not ruled upon, and justices disagreeing in whole or part with the majority set out their differences, too. The single unanimous opinion in this case is a strong, bold statement the court is of one mind that "Terri's Law" is not constitutional. The well-written decision will be relevant and precedential in Florida and elsewhere for decades and perhaps centuries to come.

So how about an appeal? The quoted comments reproduced in the stories above suggest that an appeal to the United States Supreme Court is under consideration. That's appropriate. It should be. But long consideration does not appear necessary. The U.S. Supreme Court will only review decisions involving federal law. This case was brought to challenge a state law as unconstitutional under a state constitution, and neither the legal challenge nor the final ruling in the case bears any trace of a federal issue.

That said, I can suggest what the Governor's counsel might be thinking about. Remember Governor Bush's Reply Brief? I didn't mention this when I was discussing the briefing, but the Governor's Reply Brief did include an argument on a federal issue: the Governor argued (page 6) that he was being denied his federal due process rights by not having a trial regarding Terri's wishes. That argument was most likely included to try to set up a U.S. Supreme Court challenge should the Florida Supreme Court rule against the law's constitutionality.

As for the process of appealing, Florida provides state officials with an "automatic stay" of a lower court's ruling when they appeal that ruling. There is no similar rule when a state official appeals a state court decision to the federal supreme court. So Governor Bush would need to ask the U.S. Supreme Court not only to review the Florida decision but to stay that decision pending review. The ruling on that motion, were it made, would be a rather good signal of whether the U.S. Supreme Court thought it had a role to play here.

So you know, the Governor will have 90 days from when the Florida Supreme Court's decision becomes final to file a notice of appeal. The Florida court's decision will be final either 10 days from yesterday, if no motion for rehearing is filed, or whenever a filed motion for rehearing is resolved. As I mentioned, though, filing a notice would not stay the Florida court's ruling. That could only be done by motion.

Next, a word on why this case is different from the death penalty cases that are being discussed. When a defendant is sentenced to die, the defendant will usually return to court by every possible means in an attempt to have the conviction and sentence overturned. (Timothy McVeigh was a high profile exception to this.) This process often takes decades to conclude. Importantly, these challenges are made by the defendant against the conviction and sentence. The propriety of the conviction and sentence are squarely at issue.

In this case, by comparison, the propriety of the original decision regarding Terri's wishes was never squarely at issue. The case was brought by Michael Schiavo to determine the constitutionality of "Terri's Law." Only the constitutionality of the law was at issue. No one ever instituted a separate claim or case in an attempt to revisit the decision about whether Terri would chose to continue receiving a feeding tube. That's why the Florida Supreme Court yesterday began its analysis by saying:

We begin our discussion by emphasizing that our task in this case is to review the constitutionality of chapter 2003-418, not to reexamine the guardianship court’s orders directing the removal of Theresa’s nutrition and hydration tube, or to review the Second District’s numerous decisions in the guardianship case.
Meanwhile, there are a number of things still going on that concern the guardianship court. Two concern Michael's status as Terri's guardian. They are ancillary to the decision to remove Terri's feeding tube because that decision was made by the court based on what Terri would want, not what her guardian wants. Whether Michael is Terri's guardian or someone else is would not change the result regarding Terri's wishes. I'll post about these items more in the future.

The significant item pending in the circuit court is a motion filed by Terri's parents to vacate the original decision regarding Terri's wishes. You can read the motion here. It alleges that Terri's wishes should be revisited in light of Pope John Paul II's recent statements regarding the removal of feeding tubes from people in persistent vegetative states.

This is a terribly interesting motion on multiple levels. First, there is a significant threshold question of whether such a motion states a proper claim for relief. Should recent events affect someone's decision regarding whether he or she would continue to receive life-prolonging medical treatment? And in particular, statements by religious leaders? That's one angle.

Another is whether this particular statement really means what the Schindlers say it means. The statements were made in a speech the Pope gave back in March. You can read the speech here. There is considerable debate in the Catholic Church over whether the Pope's statements were meant to cover all situations or whether they were addressed to particular situations, such as where there is a potential for recovery. There appears to be far less debate in the Church regarding whether the statements were made as authoritative, binding pronouncements. They were apparently not. (Contrary to the beliefs of some, not every word uttered by a pope in any situation is binding on Catholics.)

So what do the Pope's words mean for Catholics? How do they compare with what the American Bishops have been teaching about feeding tubes? (Compare the Pope's statements to last year's statement on Terri's case by Bishop Robert Lynch, bishop of the diocese where Terri and her family live and the highest ranking Church official with respect to Terri other than the Pope.) These questions are tough to answer, and there is a significant legal issue here about whether a court can even try to do so. The constitutional doctrines regarding the separation of church and state generally discourage, if not prohibit, courts from delving into theological disputes.

According to the Tampa Tribune article linked above, Judge Greer will hold a hearing next week on the legal sufficiency of the Schindlers' latest motion to vacate. If he rules the motion is facially sufficient to form a basis for relief, the matter will head to a trial, and thereafter the losing party will most likely appeal. If he rules the motion insufficient, the Schindlers will no doubt appeal. So, either way, this saga continues.

Thursday, September 23, 2004
Schiavo Thoughts
I'll have some expansive thoughts posted later regarding today's decision. Thanks to the many readers who've emailed me and asked questions. I'll try to answer them, mostly about what happens now, tonight.

The Florida Supreme Court has ruled in the Terri Schiavo case. I previously commented in this post that a decision should probably not be expected for months, but I also noted that the sooner the court ruled, the more likely it was that the court would affirm the trial court's decision that "Terri's Law" is unconstitutional. I commented that it was possible a quick ruling could find the law unconstitutional based on the separation of powers issues.

Well, the high court ruled very quickly. Far quicker than I expected. The ruling is unanimous that "Terri's Law" is unconstitutional because it violates the separation of powers principles of Florida's constitution.

You can read the decision here.

Proposed Minimum Wage Amendment
Today's St. Pete Times has this story regarding the proposed constitutional amendment to increase, perpetually, the minimum wage in Florida. That's just one of many proposed constitutional amendments that we'll be voting on in November and that I will be blogging about in the weeks ahead.

Appropriately so for a business-section piece, the story leaves out one angle that's been the subject of many a political whisper: that this proposal was created not so much for its own merits but to encourage turnout by voters likely to vote for the Democratic presidential nominee.

Wednesday, September 22, 2004
CLE Highlight
Yesterday's CLE for members of the Appellate Practice Section discussed the state supreme court's pass-through jurisdiction: the procedure by which an appeal can leap-frog the district court of appeal and land right away in the high court. The CLE was very well done and included one trivial tidbit I thought I'd pass along.

Jon Wheeler, Clerk of the First District Court of Appeal, was a panelist yesterday. He recounted how Sid White -- the former longtime clerk of the state supreme court -- once referred to pass-through cases by another term: throw-up cases.

It's in all the point of view, I guess.

Fifth District: Majority Opinions?
This case from the Fifth District presents an unusual situation. One judge concurred in both the lead opinion and in another judge's separate concurrence. On the theory that two judges of a three-judge panel speak for the court, I suppose that means there are two majority opinions in this case, although the second one would then appear to be largely dicta.

Third District: Support Problems
Can $23 million in payments pursuant to an agreed dissolution order be characterized as support for the payee? Maybe, but not in this case. The Third District saw the payments as part of an equitable distribution. Family law attorneys will enjoy just reading the figures at issue in this case.

Third District: Certified Conflict Question
In this asset forfeiture case, the Third District not only certified conflict with a Fourth District case but articulated the specific question that the districts have answered differently:


Third District: Police Duties
We know that police owe a duty of care to third parties injured as a result of high speed chases of fleeing suspects. However, according to this case from the Third District, a passenger in the car of a fleeing suspect is not owed a duty of care.

The court's analysis is interesting. Resolving whether a legal duty exists is one of the purest policy-based substantive decisions that courts make.

Fourth District: Certiorari
Is the denial of a motion to continue a trial reviewable by petition for writ of certiorari? No, said the Fourth District in this case. Any error can be corrected on appeal.

Questions, questions
Chief Judge Schwartz of the Third District recently authored this opinion, which certified a series of questions to the Florida Supreme Court as matters of great public importance.

The case involved a woman who claimed she visited a hotel and learned its parking lot was full. A guard directed her to park at a lot across the street, with assurances the lot was safe. She did so and was confronted by an armed robber who took her purse and, after asking her to lift her clothes, patted her body. She was not physically injured but claimed severe emotional damage. She sued the hotel and its security company for negligence in failing to protect her from foreseeable criminal action. The trial court granted the defendants summary judgment based on Florida's impact rule. The Third District affirmed based on its precedent, but the court expressed misgivings about the result and certified to the state supreme court the following questions:

1. Is the evidence that the plaintiff was touched against her will by the pistol placed to her head and in "patting down" her body sufficient to satisfy the Florida impact rule? See and compare, e.g., Gracey v. Eaker, 837 So. 2d 348, 355 (Fla. 2002); Zell v. Meek, 665 So. 2d 1048 (Fla. 1995); Eagle-Picher Industries, Inc. v. Cox, 481 So. 2d 517 (Fla. 3d DCA 1985), review denied, 492 So. 2d 1331 (Fla. 1986).

2. Is the evidence that the plaintiff was apparently the object of an assault and multiple batteries1 sufficient to satisfy a "free standing tort" exception to the impact rule which may exist in Florida? See Kush v. Lloyd, 616 So. 2d 415 (Fla. 1992).

3. Is the innkeeper-guest relationship involved in this case a "special relationship" under an exception to the impact rule which may exist in Florida? Rowell v. Holt, 850 So. 2d 474 (Fla. 2003); Gracey v. Eaker, 837 So. 2d 348 (Fla. 2002).

4. Should the impact rule be abolished?

Tuesday, September 21, 2004
Appellate Practice Reminder
This is more than a bit late, but in case anyone's checking this blog just before lunch: A reminder to the appellate folks out there that today's Florida Bar Appellate Practice Section CLE starts at 12:10 pm and concerns "The Ins and Outs of Pass-Through Jurisdiction."

Second District: Will You?
Let's say you are in a divorce proceeding. Can the family law court require you to make your child the beneficiary of your will? For the answer, check out the end of this case.

Second District: Plain Smell
Here is a constructive possession case that may interest those involved in criminal law. The possession issue turned on whether a block of pressed cocaine, wrapped in plastic and placed in an open kitchen cabinet behind some other items, was in plain view. The Second District said no, rejecting a "plain smell" theory that the item, which may have looked like soap, did not smell like soap. Judge Covington dissented.

Second District: Applying Kaklamanos
This case involved a plaintiff's failure to utilize chapter 766's presuit notice procedures, in the context of a developmentally disabled persons' rights claim, and the appellate court's ability to utilize the writ of certiorari to correct the trial court's error in not dismissing the case. A panel of the Second District divided over whether certiorari could apply, with a majority saying it could. The discussion is an excellent one for appellate practitioners to study.

Second District: Conferring With Counsel
For a very interesting, academic-style analysis of whether a trial court committed reversible error in prohibiting a defendant from conferring with counsel during a break in the defendant's testimony, check out this decision from the Second District.

Second District: Set-offs
To set off a third party's settlement, must the issue be pleaded as an affirmative defense? As this case from the Second District shows, the answer is: it depends.

Second District: ERISA
Are all group medical insurance policies purchased through an employer covered by ERISA? Not according to this decision from the Second District.

Second District: Jurisdiction Reminder
Just a simple reminder here from the Second District: a trial court's lack of post-judgment jurisdiction, such as where the trial court considers a Rule 1.540 motion beyond the rule's time limits, can be raised for the first time on appeal.

Monday, September 20, 2004
Second District: Spider Sense
This decision may make for an interesting lesson in tort law. Following an automobile accident, a man went to a hospital, where he donned a gown and was bitten by a black widow spider. He sued the hospital for negligence regarding the bite and for negligent infliction of emotional distress regarding some joking comments the hospital staff made after the injury. A jury awarded damages on each theory, but, in Florida's first case on spider bites, the Second District reversed, finding the evidence insufficient to impose liability as a matter of law.

Supreme Court: Homestead Exemption
In this case, the Florida Supreme Court held that the "Save Our Homes" cap on homestead property tax assessments does not take effect until a homeowner applies for and receives a homestead exemption. The Fourth District had previously decided here that the cap applied once a homeowner qualified for the exemption.

First District: Sentencing
The First District has generated a conflict with other district courts of appeal over whether a single offense can result in a sentence as a violent career criminal and a habitual felony offender. If sentencing's up your alley, check out this decision for the details.

Crisis Break?
Looking back over the last few weeks, Charley, Frances, Ivan, and the Reform Party election case have been overpowering events from where I sit. The storms had me away from the blog for a bit and the elections case dominated the blog. Time to get back to some case law and such, at least until the next crisis.

Friday, September 17, 2004
Reform Party Case: By the Numbers
For those of you who keep track of everything by numbers, here's some info on the decision blogged below:

There are 7 justices on Florida's supreme court.

Today's decision was 6-1 in favor of reversing the trial judge and leaving the Reform Party candidates on the ballot.

The court split 5-2 with regard to whether the Reform Party candidates were affiliated with a national party and were nominated at a national convention. Five said maybe. Two said no.

Only 1 justice thought the Reform Party folks should not be on the November ballot in Florida.

The more I think about it, the more I think the media will have an interesting time summarizing what the majority actually decided. Did they find that the Reform Party folks were legit or not? Well, they did, but they did so in the most deferential way possible, essentially saying that under some definition of those terms, the Reform Party candidates qualified, but the justices had no idea whether such broad meanings were the meanings the Legislature intended when it set those requirements. Given the context -- a presidential election, a right of access to the ballot, and a right to vote -- the court decided to err in favor of putting candidates on the ballot.

The Florida Supreme Court has just reversed the injunction by Judge Davey which ordered the Reform Party presidential candidates, Ralph Nader and Peter Camejo, off Florida's 2004 ballot.

So Nader is on the Florida ballot. For good.

You can read the high court's decision here.

I must give the court a grand amount of credit. The court issued three opinions -- a five-justice majority opinion, a concurring opinion, and a dissenting opinion. All three are well written, which, under the circumstances, seems almost impossible.

The majority opinion is without attribution but was joined by Chief Justice Pariente and Justices Wells, Quince, Cantero, and Bell. In short, the majority concluded that terms such as "national party" and "national convention" -- terms which are critical to qualification for the statewide ballot in Florida -- are not defined under Florida law and, in the absence of some indication of what the Legislature intended those terms to mean, the court was unwilling to conclude that the Reform Party candidates did not qualify. The court was also unwilling to ascribe meaning to those terms when the Reform Party would have had no way to be on notice of any such meaning. So said five justices.

Justice Lewis concurred in the result in one of the more dissentful concurrences you will come across. He found the majority's approach unfaithful to a common understanding of what makes a party a "national" one, but he agreed with the result -- leaving Nader on the ballot -- because the Reform Party had no notice of how Florida would construe the requirements at issue.

Finally, Justice Anstead dissented. In essence, he agreed with the trial court that no matter how the terms at issue are defined, the current Reform Party candidates do not qualify for inclusion on the ballot.

Congratulations to the court on making it through this difficult case in such a swift but polished fashion. The county elections supervisors -- all 67 of them -- now know what ballot to send to absentee voters, and the 4 or so supervisors who already mailed ballots with the Reform Party candidates listed, well, you folks can breathe easier now.

Reform Party Case
No decision yet, but the day is far from over...

School Voucher Decision: Headed En Banc
Turning back to last month's Bush v. Holmes decision -- the case invalidating Florida's Opportunity Scholarship Program under Article I, section 3, of the Florida Constitution -- a funny thing has happened on the way to the Florida Supreme Court.

Word is out that the First District has granted rehearing en banc in the case.

It would seem doubtful they did that to reiterate the panel majority's opinion.

Those of you who have frequented Abstract Appeal of late may recall that I took the rare step of offering my own views on the majority's decision back in this post. (That probably had something to do with my work in writing the Attorney General's brief in the case.) And the following Friday the whole subject prompted me to ask this very neat Florida Law Trivia question, which generated some terribly interesting responses from readers. (The answer came here.)

Trivial Break
Hunter and I are getting a pro bono brief out the door today to one of our state's noble courts, so we're taking a break from the weekly Florida Law Trivia post. We'll think of a good stumper for next week.

Reform Party Case: Oral Arguments Today
Just a reminder that the oral argument for the lightning-fast appeal in the Reform Party case is scheduled for 8 am this morning. The argument will be broadcast over the Internet, and you can watch it by going to this page at 8 o'clock and clicking on the appropriate link. If you log on to that page before 8 am, you will need to refresh the page at just about 8 in order to acquire the correct link to watch the arguments.

I haven't checked on national cable coverage, but I would not be surprised if one of the news channels will be presenting the argument live.

Thursday, September 16, 2004
Reform Party Case: Briefs Are In
On the heels of Judge Davey's ruling yesterday that the Reform Pary is not a national party under Florida law and that it failed to nominate Ralph Nader and Peter Camejo at a national convention, the parties to the case have filed their appellate briefs in the Florida Supreme Court. They're available at these links:

Reform Party, Nader, Camejo (appellants)
Secretary of State (appellant)
Florida Democratic Party and others (appellees)
Harriet Black and others (appellees)

If you are interested in reading the Florida Statute that is primarily at issue, you can find it here.

Fourth District: The "Frances" Extension
I'm looking for the right metaphor here... Broad stroke? Giant step? Either way, the Fourth District knows how to do it, or take it. In this administrative order entered yesterday, the court dealt with how deadlines will be accommodated in light of the fact Hurricane Frances caused the court to be closed from September 1 until September 15. The order tolls all original proceeding deadlines that passed between September 1 and September 15 for the period the court was closed. The order also extends all other filing deadlines that fell during the September 1-15 period until September 30.

Reform Party Case: Stay Update, Filing Update
From the filings, it looks like Judge Davey has entered another order vacating the automatic stay. This order came after the state supreme court in effect granted the motion to reinstate the stay, vacating the order that required the Secretary of State to direct the elections supervisors who have already mailed absentee ballots with the Reform Party candidates to mail new ballots without those candidates.

As best I can tell, the trial court's latest order on the stay issue has little or no practical effect because the Florida Supreme Court has essentially ordered the Secretary to instruct elections supervisors not to mail anything more until that court decides what should be mailed.

Turning to the issue of who files what where, I mentioned a few days ago (in this post) that the final judgment would be appealed to the First District and that the Florida Supreme Court may be expecting an immediate certification. Well, the high court has now entered this order clarifying that it has assumed jurisdiction over the entire case and that all final and non-final appeal notices should be filed in the supreme court, not the district court.

Wednesday, September 15, 2004
My question posed at the end of the last post is squarely on my mind as I now read that the Florida Supreme Court has, in essence, granted the Secretary of State's motion to stay the trial court's injunction pending appeal.

Backing up a second: This morning, Judge Davey ruled (in this order) that the Secretary must instruct all elections supervisors that if they have mailed any ballots listing the Reform Party candidates, ballots without those candidates' names must be mailed immediately along with a statement that the prior ballots were in violation of Florida law and that the ballots without the Reform Party are the correct ones.

The supreme court's order, which is available here, overrules the portions of Judge Davey's order that I just described.

The supreme court's order is quite plain: the stay is going to remain in effect until the high court resolves the case. Meanwhile, the Secretary (as a condition of receiving the stay) is to direct the elections supervisors not to mail any more ballots until the court resolves the appeal.

Does this mean that the high court has ordered Nader back on the ballot? Not really. The Secretary had recertified the ballot to include the Reform Party candidates. The trial judge then attempted to gut that recertification. In the most simple of terms, the high court just said: EVERYBODY STOP.


Returning to my question from the end of the last post, will the plethora of newspaper editorial boards who castigated the Secretary in today's papers for making the "political" move of invoking an automatic stay acknowledge that the Secretary's decision may have been the proper interim -- and let me emphasize interim -- step until the supreme court rules in the case?

Stay, Stay, Stay?
It seems that, before this morning's trial started, Judge Davey first heard the Florida Democratic Party's motion to vacate the stay that was automatically generated when the Secretary of State appealed Judge Davey's preliminary injunction, and he granted the motion. Thus, in a strange, almost ethereal sense, Ralph Nader is now not supposed to be on the Florida ballot and the Secretary is enjoined from certifying him as a candidate for election. Of course, she just did certify him as a candidate yesterday (after the stay of the injunction took effect), after she did not certify him last week (while the injunction was in effect).

The elections supervisors' heads must be spinning. They're the folks that need to have overseas absentee ballots printed for their respective counties, and by Saturday.

The Secretary has already asked the Florida Supreme Court to vacate this morning's ruling and reinstate the automatic stay. You can read her motion here.

I suppose the high court will feel compelled to rule on this quickly, but I wonder if the court does not wish it could speak to one of the elections supervisors so it can assess the logistics of the printing situation.

In related news, the editorial staffs of Florida's major papers roundly blasted the Secretary today for her decision to appeal the preliminary injunction, characterizing it (and the resulting stay) as a crass political move to help the GOP. (Mark Lane of flablog has a great summary of today's editorials, with links.) I can't help but wonder, though: if the Florida Supreme Court reinstates the stay, on the theory that leaving Nader on the ballot is the most equitable thing to do while the case is still in court, what will the editorial boards think?

Welcome (Back) To Florida, Professor Tribe
It looks like none other than renowned constitutional scholar Larry Tribe will be arguing on behalf of the Florida Democratic Party at Friday morning's oral arguments in the Reform Party case.

Read the pro hac vice order here.

Reform Party Case: High Entropy
If you thought the only thing the Reform Party intends to try at today's trial is whether its candidates qualify for inclusion on Florida's presidential ballot, think again. The Reform folks have counterclaimed against the Democrats, charging that the Democratic candidates should be removed from the ballot because they failed to deliver a list of their electors that was certified or notarized, as required by Florida law. You can read the answer and counterclaim here.

Just to be clear, in case this is new to anyone: Accompanied by various affiliates, the Democratic Party and the Reform Party are each in a Tallahasee courtroom today arguing, at trial, that the court should remove the other's candidates from the Florida ballot. Loser or losers get a rocket-like appeal in the state supreme court.

Reform Party Case: Oral Argument Scheduled
Right now, the parties in this case are holding a trial before Judge Davey. The current plan is for the trial judge to enter a final order later today on whether the Reform Party candidates are bona fide candidates under Florida law. Given Judge Davey's statements at the preliminary stage, it is very likely he will determine that Ralph Nader and his fellow nominee are not valid national party candidates under Florida law.

Appellate briefs on the issues are due at noon tomorrow in the Florida Supreme Court, and pursuant to this order, the high court has set oral arguments in the case for 8 a.m. Friday morning, with 30 minutes per side.

At some point soon I should take a moment to comment on how utterly, unbelievably, and (for some) painfully fast this litigation is moving at the appellate level.

Tuesday, September 14, 2004
Reform Party Case Update: Remanded!
I said to expect a quick decision on the propriety of removal, and a quick decision is what happened. Judge Mickle of the Northern District of Florida has just entered this order finding removal improper and remanding the case back to the Florida courts.

Judge Mickle held that no federal question existed, that the Secretary of State's consent to removal was necessary but not obtained, and that the defendants in the case waived the right to remove through their participation in the state court proceedings.

So the Reform Party's removal effort has been lost and the episode is over. Given the timing issues in the case, it is probably fair to ask if the failed effort will have offended any of the Florida judges, though either way it should not affect the ultimate result.

Reform Party Case Update: Removed!
Wow. Things are still moving at the speed of light in this case. Here you can read a notice indicating that the Reform Party has removed the case to federal court.

This is unbelievable. Removal generally deprives a state court of jurisdiction over a case. Here, the case was in two parts -- partly in the trial court and partly on appeal in the supreme court.

Can the removal be proper? The actual notice of removal is available here and states that the case presents a federal question. That's an interesting issue that I haven't examined, but somewhere out there a federal judge's staff is probably looking at it right now.

This motion filed today by the Florida Democratic Party indicates that a motion to remand the case has also been filed in federal court, challenging the removal as improper.

It's possible that the remand issue will be immediately addressed by the federal court and, ruling removal was improper, the case will be returned to state court in time for tomorrow's hearing. It's also possible that if the remand issue is not resolved by tomorrow morning then the state court proceedings will be held anyway, on the theory that if removal is ultimately found to have been improper then the proceedings will be valid. Finally, it's possible that the federal court will consider the remand issue and decide the case was properly removed, leaving an almost impossible situation in getting the matter resolved in time for the overseas absentee ballots to be mailed.

There are so many permutations on the present circumstances that it's tough to think about them all. I'll note that the motion by the Democratic Party linked above attempts to distinguish between the Reform Party's appeal and the Secretary of State's appeal, suggesting that the Secretary of State's appeal is still in state court, but Rule 9.020(g) seems to make every party in the trial court a party on anyone's appeal and yesterday the First District entered this order construing the Secretary's notice as a joinder in the Reform Party's appeal. Very interesting. The Reform Party folks seem to have taken advantage of the automatic stay triggered when then the Secretary of State appealed, and the Democratic Party is trying to argue that the stay can still be lifted despite the removal.

To readers who frequent this page and have come to expect me to at least make an effort to explain technical legal stuff in understandable language, I have to apologize for my curt explanations of what's going on. I suppose I could sum it up this way: right now this phenomenally fast-tracked case is in a sort of limbo between state and federal court, and the status quo is that Ralph Nader is certified as a candidate to be on the ballot. We'll have to wait and see if any of this changes later today. Expect a swift decision from the federal court on the removal issue, which should at least tell us whether the case will go forward in state or federal court.

Party List
With all the hoopla over the Florida Democratic Party's challenge to the Reform Party's presence on Florida's presidential ballot, I thought I'd take a look at who else is on the ballot.

Not including potential candidates Ralph Nader (P)/Peter Camejo (VP) -- Reform Party, who may or may not end up being qualified candidates under Florida law after all, this year's Florida ballot will include the following party candidates for President and Vice-President of the United States:

Michael Badnarik (P)/Richard V. Campagna (VP) -- Libertarian Party

Walter F. Brown (P)/Mary Alice Herbert (VP) -- Socialist Party

George W. Bush (P)/Richard B. Cheney (VP) -- Republican Party

David Cobb (P)/Patricia LaMarche (VP) -- Green Party

James Harris (P)/Margaret Trowe (VP) -- Socialist Workers Party (best link I could find)

John F. Kerry (P)/John Edwards (VP) -- Democratic Party

Michael A. Peroutka (P)/Chuck Baldwin (VP) -- Constitution Party

Reform Party Case Update
Oh my. The Florida Supreme Court issued two orders last night in this case.

In the first order, available here, the high court accepted jurisdiction, decided to allow the trial court to address the stay issue first, ordered the trial court to hold the trial and enter a final order Wednesday, and ordered simultaneous briefing of the appeal by noon Thursday. The court also ordered that the full transcript, exhibits and other record materials to be filed with the court by noon Thursday.

The second order, available here, directs the parties to file briefs by 4 pm today addressing a series of specific questions concerning the deadline for mailing overseas absentee ballots, including where the deadline originates and whether it can be extended. It appears that a consent decree between the State of Florida and federal officials requires Florida to mail its overseas absentee ballots no sooner than 45 days before a federal election. With a November 2 election date, the 45-day deadline would be Saturday, September 18.

Somewhere out there a court reporter is not very happy, and that's assuming real-time court reporting is available. I won't even mention the law clerks.

So let's sum things up. The parties have:

-- briefs on deadline issues due in the supreme court by 4 pm today
-- a full trial on the merits of the case tomorrow, and
-- briefs for the appeal due in the supreme court by noon Thursday

In all this, something's a bit unclear to me. Is this really an appeal of the nonfinal order issued last week, or is it an appeal of the final order that will be issued tomorrow? Jurisdictionally speaking, the court is reviewing only the nonfinal, preliminary injunction order. The final order does not yet exist, and when it does it will be appealed first to the district court. Having said that, the preliminary order's correctness may be moot following entry of a final order, and it sure looks like the supreme court expects the parties to brief an appeal of the final order. Why else defer briefing until after tomorrow?

My guess is that the court expects to have it both ways. The court's schedule permits briefing on the final order, even though this is currently an appeal of only last week's order, and, without saying so, the court expects that the final order will be immediately appealed to and passed up by the First District, leaving the whole case in the high court by Thursday morning. Thursday's briefs should address Wednesday's order.

Monday, September 13, 2004
Reform Party Case
This case continues to advance at a dizzying pace, and it's perhaps going to get even better. A few updates:

Judge Davey's preliminary injunction, wherein he concluded that the Reform Party is almost surely not a bona fide political party under Florida law, is now available online. Read it here. My favorite part:

The Reform Party of Florida, such as it is, does not appear to be "affiliated" with the Reform Party of the United States as required by the statute. An April 27, 2002 letter from the Chairman of the Reform Party of Florida (Exhibit H) shows that the Reform Party of Florida disaffiliated from the national party. The Reform Party of Florida contests this point.
You cannot buy entertaining legal issues like this.

It gets better. The Secretary of State has now appealed the preliminary injunction, invoking the automatic stay of Rule 9.310(b)(2). Then, at approximately 3 pm today, she recertified the Florida ballot to include the Reform Party candidate, Ralph Nader. (Why this appeal wasn't filed -- and the preliminary injunction consequently stayed -- before she certified the ballot without Nader in the first place, I can't say.)

To avoid the ballots being reprinted to include the Nader camp, the Florida Democratic Party subsequently filed this motion in the Florida Supreme Court asking the court to stay the Secretary's recertification. That motion does not seem to fit neatly within Rule 9.310(b)(2) -- it does not ask the court to vacate or impose conditions on the automatic stay. At any rate, it would seem that the court could utilize its constitutional all writs authority to make any order that it deemed necessary to ensure meaningful review.

At the same time (well, maybe 30 minutes later), the Reform Party has filed a suggestion that its prior request to stay the preliminary injunction is now moot in light of the Secretary's appeal and the resulting automatic stay.

And so we wait on the court's decision on whether it will keep the case and, if so, the schedule by which it will be heard.

Faster Than Lightning?
To follow up on the previous post, I just learned that oral arguments are not being held today at the First District regarding Judge Davey's preliminary injunction in the Reform Party case. Instead, the First District has certified the appeal to the Florida Supreme Court as a matter of great public importance requiring immediate resolution.

Considering that absentee ballots, or at least overseas absentee ballots, are expected to be mailed to voters in the coming week, with or without Ralph Nader's name as a presidential candidate, the certification would seem to be most appropriate.

You can view the certification order here.

You can also view the appellees' request that the high court accept the certification by looking here. The request mentions that a final hearing is scheduled before Judge Davey for Wednesday, with a final order expected to be rendered Wednesday evening. I wonder if giving the court this information was the primary motivation for filing this document. Hmmm. The court may want to wait on the final order before hearing the appeal, but if the court has to wait until Thursday to begin the appellate proceedings, and assuming the preliminary decision is made final, would there be time to have ballots printed with Nader's name (including absentee ballots) if the high court were to reverse?

Lightning Fast Suit
Things are sure moving fast on the elections front. This weekend story from the Tallahassee Democrat explains that Ralph Nader's attorneys filed an appeal Friday afternoon from Judge Davey's ruling that keeps the candidate off Florida's presidential ballot. According to the story, the First District has set oral arguments in the case for today at 2 p.m. Wow. I wonder if briefs were due this morning.

For more on Judge Davey's ruling, check out this prior post.

Whenever A Door Closes...
...it might open again. If you were banking on the appellate courts being closed this week (say, for a filing that's due), be careful. With Hurricane Ivan's present track, and despite last week's announcements to the contrary, the Third District, Fourth District, and Fifth District are reporting that they are open today.

Job of a Lifetime
Last week, the United States Senate overwhelmingly confirmed the President's nomination of Second District Court of Appeal Judge Virginia Covington to the Middle District of Florida, as Senator Leahy's web site notes in the preface to his reprinted remarks on her nomination. You can read those remarks, and the preface, here. Congratulations to Judge Covington.

Saturday, September 11, 2004
Equal Opportunity Closer
Chalk this up to the unpredictability of hurricane paths:

The Second, Third, Fourth, and Fifth Districts have all announced that they will be closed on Monday due to the threat of Hurricane Ivan. That's every state appellate court except the First District and the Florida Supreme Court.

The First DCA and the state supreme court are located in Tallahassee.

The latest forecast for Ivan has it headed straight for Tallahassee.

Friday, September 10, 2004
Friday Florida Law Trivia Answer
Price-gouging is a popular term nowadays, but what's the law say? Well, this statute explains that sellers of items I'll loosely call essential goods (including property rental) cannot charge unconscionable prices. The statute defines what makes a price unconscionable. The law is triggered when a state of emergency is declared and lasts until the declaration is lifted.

I'm not sure if the statewide state of emergency declared for Hurricane Frances has been lifted yet, but with Ivan on the way I don't think it's going to matter.

Stay safe.

Friday Florida Law Trivia!
We're all a bit caught in hurricane madness around here. Hunter and I intended just to skip the weekly trivia question -- a sort of hurricane hiatus -- but perhaps another storm-related question would be appropriate. Here goes.

When are Florida's price-gouging restrictions in effect, and what do they prohibit?

The answer will be posted around 4:45 EDT.

Closing, Closing, Closing
The Fourth District has announced it will remain closed through Tuesday, September 14, due to Florida's hurricane activity.

The state court system is doing a great job keeping track of all the state court closures here.

Florida Ballot: Certified Without Nader
The Tallahassee Democrat has the latest on the Florida Democratic Party's (so far successful) effort to keep Ralph Nader and the Reform Party off Florida's presidential ballot. Check it out here.

The Florida Supreme Court says here that the court is converting to Microsoft Word. Finally.

Fourth District: Rule 1.442 and General Releases
If you litigate, then you'll probably be interested in this case from the Fourth District. The court held that a proposal for settlement under Rule 1.442 is insufficient if it states the other side must sign a confidentiality agreement or general release but those items are not included with the proposal.

That is terribly significant and probably differs from the way many attorneys practice.

The Fourth District's holding is also in some tension with the court's prior case law regarding general releases. Consider the following language from this latest case:

[W]ith regard to the confidential settlement agreement being proposed, it would be crucial to know what is being made confidential, who is covered by the confidentiality, whether there is any period to the confidentiality, and what the remedies are in the event of a breach. As for the proposed general release, there are no "standard" general releases; all are unique. The fact that a proposed release is described as "general" is virtually meaningless. Again, it would be essential to know what is being released, who is being released, and any conditions or terms of the release.
Five years ago, however, the same court considered a case involving a plaintiff who demanded that the defendant insurer tender its policy limits to settle the case, and the insurer did so with a requirement that the plaintiff execute a release. The issue for the court in Erhardt v. Duff, 729 So. 2d 529 (Fla. 4th DCA 1999), was whether the insurer's response was an acceptance of the offer or a counteroffer, due to the release requirement. The court held that executing a release was "implicit" in the offer because "it would have made no sense" for the insurer to tender its policy limits if it could still be liable for further claims based on the same incident. In other words, requiring a release did not add a material term to the deal. Citing a Third District case, the court referred to settlement documents as "a mere procedural formality."

Can these cases be reconciled? I'm not sure it matters. Just attach the proposed release or confidentiality agreement to any settlement proposal under Rule 1.442.

Thursday, September 09, 2004
Every Vote Counts!
The Democratic Party has persuaded Tallahassee circuit judge Kevin Davey that the Reform Party is not a party at all, resulting in a ruling that could invalidate Ralph Nader's presidential candidacy in Florida. Judge Davey issued a preliminary injunction that prohibits Florida's Secretary of State from certifying the ballot with Nader's name on it until further proceedings are completed in the case.

You can read about it all in this story in today's Tallahassee Democrat. The story quotes the Florida Democratic Party chairman as saying the decision to include Nader on the ballot, made by the state's Republican Governor and Republican Secretary of State, was "tinged with politics."

Eleventh Circuit: Class Action News
If you have an interest in class actions, then you will probably have an interest in this decision from the Eleventh Circuit. The court affirmed certification of a class and subclasses in a multi-district case pending in South Florida involving, as Judge Tjoflat put it, "almost all doctors versus almost all major health maintenance organizations." The case is massive, as is the appellate court's 70-page opinion. (Thank goodness for interlocutory review, huh?)

There are many noteworthy aspects to this case. First, the court gave RICO a rare shot in the arm by viewing its "pattern of racketeering activity" element, at least in the context of alleged wire fraud, mail fraud, and Travel Act violations, as helpful to establishing that common questions predominate over individualized issues. (Attention plaintiffs' bar! Attention plaintiffs' bar!)

Second, the court affirmed the class certifications despite the heavy involvement of wire and mail fraud issues, holding that reliance could, under the circumstances of the case, likely be shown through common proofs. Wow.

Third, the court's analysis of the desirability of certification included a quoteable quote. Explaining that certification is desirable where the individual amounts in controversy are such that pursuit of individual claims would be unlikely, the court added:

This is especially true when the defendants are corporate behemoths with a demonstrated willingness and proclivity for drawing out legal proceedings for as long as humanly possible and burying their opponents in paperwork and filings.
If the plaintiffs' bar maintains a quote list for class action papers, that one needs to be on it.

Fourth, the court rejected the notion that "immature" (i.e., legally novel) theories of liability are somehow less deserving of class action treatment than "mature" theories.

Finally, the court rejected arguments that class treatment is inappropriate where a single case could threaten an entire industry's existence or where the case creates unfair or coercive settlement pressures.

One more comment. One of my majors in college was political science, and having studied Thomas Hobbes quite a bit I found it somewhat rewarding to reach the final paragraph of the 70-page opinion and find this language:

Given the number of parties involved in this case, it threatens to degenerate into a Hobbesian war of all against all. Nevertheless, we feel that the district court--a veritable Leviathan--will be able to prevent the parties from regressing to a state of nature. One can only hope that, on remand, the proceedings will be short, though preferably not nasty and brutish.
I wouldn't bet on it.

Eleventh Circuit: Qualified Immunity Decision Stands
Last August, the Eleventh Circuit released a decision in which it held that a Jacksonville fire chief acted unconstitutionally when he decided to postpone creating new positions because of the race of the next available candidates. They were white, and the fire chief want to wait for a more diverse group to be promoted. While the court found the decision to be unconstitutional, the court nonetheless held that qualified immunity applied because clearly established law did not place the fire chief on notice of the unconstitutional nature of his conduct.

Back, oh, before Hurricane Frances came along, the court released this order denying rehearing en banc on the qualified immunity issue. Interestingly enough, and though they may be approach the constitutionality issue from different perspectives, Judge Tjoflat and Judge Barkett offered thoughtful dissents on how the fire chief's actions were obviously unconstitutional under then-existing case law. Judge Tjoflat characterized the operative principle as "one of the Constitution's most fundamental tenets--thou shalt not base official governmental decisions on race...." Well said.

Note To A Bunch of Clouds
No one around here, including me, wants to believe this today. That forecast needs to change. I've been fortunate so far not to have suffered any damage from our last two guests, Charley and Frances, but all the preparations and the tension and the lost time have taken a toll even on folks, like me, who fared well. Go away, Ivan. Just go away.

Wednesday, September 08, 2004
Fourth District: Still Closed
I suppose one downside to having a courthouse so close to the intracoastal and the Atlantic Ocean is that big storms can cause big problems. The Fourth District remains closed today and will be closed again tomorrow.

Tuesday, September 07, 2004
Amendment Case Prediction
Last week, the Florida Supreme Court issued an order, available here, which directed the Secretary of State to replace the ballot summary for the Legislature's proposed parental notification constitutional amendment with the text of the amendment itself. I described the order in a bit more detail in this earlier post, and I described some of the history surrounding the proposal in this earlier post.

As you may know, the case involved a challenge that the amendment's proposed summary was misleading and that the proposal should therefore be stricken from the ballot. Last week's order implied that the Legislature's proposed summary was in fact misleading but that the problem could be cured by substituting the amendment's text for the flawed summary. The order also concluded with an indication that a full opinion would follow. In other words, the court wanted to issue its decision right away so that it could be immediately effectuated when preparing absentee ballots and general election ballots, but the court will take longer to issue its opinion explaining its decision.

In light of all this, Mark Lane, of flablog, posed a rather sensible question: why did the court fix the parental notification amendment's misleading summary but throw out the proposed amendment to double the homestead exemption, which also had a misleading ballot summary? You can read Mark's post here.

I enjoy a good Florida law challenge, so I am going to take a stab at answering Mark's question. We will know the real answer whenever the Florida Supreme Court releases its opinion, but, until then, here's my guess.

The parental notification amendment was proposed by a joint resolution of the Legislature. The homestead exemption amendment was proposed by the citizens' initiative process. I suggest that the court is going to distinguish between these two sources of proposed amendments. Whereas defects in citizens' initiative summaries cannot be fixed, the court will conclude that legislatively proposed summaries can be cured in some instances, including this one, by presenting voters with the full text of the amendment. The basis for this difference in treatment will lie in how the Constitution and the Florida Statutes distinguish between these two sources for proposed amendments and in the deference the high court is obliged to show the state legislature, a co-equal branch of Florida's government.

At least, that's my guess.

Monday, September 06, 2004
Fourth District: Noted Indiscretions
Maybe I'm too cautious. If I won a motion to dismiss and drafted an order for the trial court to enter, and I snuck into the order a finding that the court lacked jurisdiction, I would be a bit concerned that the move might get me in trouble. I'd really worry if I started pushing the jurisdictional point in defending the result on appeal. In this case, though, it all resulted in just a footnote. A rather nice one, too.

Fourth District: Challenging Circuit Court Admin Orders
Hey, appellate experts. Just for fun: where and how do you challenge a circuit court's administrative order? In most cases, like this one just decided by the Fourth District, the challenge should be by petition for certiorari in the district court. (In others, such as challenges to judicial assignments, it will be by petition for prohibition or under the all writs authority in the state supreme court.)

Fourth District: Just Saying No
If a prisoner could earn gain time based on creative legal arguments, then the petitioner in this case might have a claim. What he doesn't have, though, is a valid argument that he should be released on bail while his post-conviction motion for relief is heard. The Fourth District "emphatically" explained that trial courts have no discretion to release prisoners on bail after their convictions and sentences have been affirmed.

Friday, September 03, 2004
Friday Florida Law Trivia Answer
According to this statute, Florida marinas may not adopt, maintain, or enforce policies that require vessels to be removed after a hurricane watch or warning has been issued. This statute was enacted after Hurricane Andrew hit Florida, and it underscores Florida's strong public policy of protecting lives before property. Boat owners should not have to risk their lives to move their boats away from marinas while a severe storm approaches.

Here's an interesting case regarding this statute: Burklow & Associates, Inc v. Belcher, 719 So. 2d 31 (Fla. 1st DCA 1998). A marina owner near Pensacola requested boat owners to move their boats in preparation for Hurricane Opal. Several boat owners did not do so, and their boats caused property damage. The marina sued the boat owners, contending that they were required to move their boats and that the statute mentioned above was preempted by federal maritime law. The trial court dismissed the case and the First District affirmed, holding that while federal maritime law applied, the "maritime-but-local" doctrine allowed the Florida statute to avoid preemption.

By the way, the trial judge in that case, the Honorable Kenneth Bell, is now a Justice of the Supreme Court of Florida.

For all who are in Hurricane Frances's path, please take all appropriate precautions and remain safe. For an update of court closings and administrative orders tolling filing times, check out this site. Until next week. Hunter.

Friday Florida Law Trivia!
I hope everyone will be safe this Labor Day with our unwanted guest, Hurricane Frances.

With the hurricane's approach, I thought this question seemed appropriate: After a hurricane watch or warning is issued, may a marina require a vessel owner to evacuate the vessel from the marina?

The answer will be posted later this afternoon.

Trivia Coming
I've been asking Hunter to hold off on this week's trivia question until I could get the last two posts up. There's still so much more to discuss from this week's events, but I'm going to pause for a little Florida law trivia. Good luck with it.

Florida Supreme Court: Parental Notification Amendment Case
I have to give the Supremes credit for moving with amazing speed in the parental notification constitutional amendment case. The court received briefs from both sides on Monday, struck Johnnie Byrd's amicus brief on Tuesday (remember this post?), and issued an order resolving the case yesterday. You can read the order here. It directs the Secretary of State not to place the proposed ballot summary on the ballot but instead to use the proposed amendment's text. The order concludes with an indication that a full opinion will follow.

Wow. It seems the court has real concerns with whether the proposed summary language would mislead voters but the court was not willing to strike the proposal from the ballot, opting instead to utilize the proposal's text. No doubt this order is a surprise to many, not only for its implicit conclusion on the summary but for the court's affirmative step of curing the problem by directing the use of the amendment's text. Courtwatchers will eagerly await the court's explanation for its decision. I will also note that this result probably goes a long way toward calming some of the tensions between the high court and the proposal's author, the state legislature.

The order is a strange victory for those who fought this proposal. The narrow argument they made about a misleading summary was apparently accepted, but they did not receive the relief they wanted, which was to keep this proposal off the November ballot.

For more background on the Legislature's proposal and the history between the Legislature and the Florida Supreme Court in the abortion context, check out this prior post.

To examine the proposal's text and the now-rejected summary, look here.

Florida Supreme Court: Florida's Religious Freedom Act
Yesterday, the Florida Supreme Court issued its first decision construing the Florida Religious Freedom Restoration Act, and it's a very interesting opinion. The decision, available here, answered questions the Eleventh Circuit Court of Appeals certified to the state high court back in 2001.

The court first determined that Florida's act is more broad than its federal counterpart, giving citizens of Florida more protection from government action that impedes religious practices. The court held that, under the Florida act, religiously-neutral laws of general application that substantially burden religious exercises must further a compelling state interest through the least intrusive means. The court also held that a substantial burden on religious exercise is one that compels a person to engage in a practice his religion forbids or forbids a person from engaging in a practice his religion requires.

Applying these tests to the specific facts of the case before it, the court upheld a City of Boca Raton ordinance that essentially prohibited placing vertical displays on city-owned gravesites. The court concluded the regulation was permissible because it did not substantially burden religious exercise.

One additional aspect of the decision deserves attention. A significant issue under the Florida act is whether and how it applies in contexts other than personal religious practices, such as the important issue of zoning. Many churches in Florida would like to use Florida's act to challenge zoning limitations that prevent the churches from constructing new buildings or expanding existing properties. Previously, the Third District issued a decision involving a zoning regulation on grounds the regulation was religiously neutral and thus not subject to strict scrutiny under the Florida act. In a footnote, yesterday's decision disapproved that Third District case.

So -- land use lawyers, get ready to roll.

Thursday, September 02, 2004
More Closings
Another Hurricane Frances update: In addition to the closings posted below, the Second District has now announced that it will be closed tomorrow.

Judging by the latest forecast, it's a good thing for our friends at the 2DCA that Monday is a holiday.

Florida Supreme Court: Equal Opportunity Strikers
This is just plain amusing. You may recall this post from a couple of weeks ago, where I discussed how the Florida Supreme Court has been striking an astounding number of amicus curiae briefs. The post specifically referenced briefs in the high profile Engle and Schiavo cases and noted that while some of the briefs were probably stricken for not complying with Rule 9.370, some of the briefs appear to have been disfavored simply based on their content.

Well, earlier this week, and proving that the court is not cutting anyone any slack on amicus briefs, the court struck the amicus curiae brief of House Speaker Johnnie Byrd, who with other state representatives submitted a brief in support of the Legislature's proposed parental notification constitutional amendment.

You can read the stricken brief, which was apparently not accompanied by a motion for leave to file, here. Missing motion aside, do you think the brief came close, or close enough, to meeting the requirements of rule 9.370?

For more on the proposed amendment, check out this prior Abstract Appeal post, and of course you can always read the Speaker's brief.

Eleventh Circuit: 1292(b) Appeals
Appellate attorneys will want to review this decision from the Eleventh Circuit, where that court for the first time explained its decision-making process when considering whether to review an order certified under 28 U.S.C. 1292(b) for interlocutory review.

Eleventh Circuit: Don't Do This
In the course of resolving a federal criminal appeal, the Eleventh Circuit took the notable step of chastizing a federal assistant public defender for his attempt to inject inflammatory racial nonsense into a case. The court identified the assistant defender by name and politely (but firmly) ripped into his effort to invoke a defendant's hometown's lynching history. Check out pages 24-26 of this decision.

Eleventh Circuit: Removal Jurisdiction
For the Eleventh Circuit's latest opinion analyzing whether state lawsuits can be removed to federal court because they involve federal issues, including preemption, check out this decision.

Wednesday, September 01, 2004
Court Closings
With Hurricane Frances lined up to strike Florida on Friday, courts across the state are closing down for the week.

The Third District will close for the week after today.

The Fourth District closed for the week at 1 pm today.

The Fifth District will close for the week starting at noon tomorrow.

The Florida Supreme Court has postponed most of its remaining oral arguments this week. (The court is still planning to hear an argument tomorrow regarding proposed workers' compensation rules changes.)

For a thorough look at trial court closings, check out this page.

In the federal realm, the West Palm Beach Division of the Southern District of Florida will close tomorrow at noon for the week.

Schiavo News and Such
I am happily surprised at, and grateful for, the number of emails I've received regarding yesterday's oral arguments in the Schiavo case. Most included questions and I've so far responded to some but by no means all. I will eventually respond to all of them, and to some other email I'm behind on answering.

At some point soon -- hopefully later today -- I will get back to posting on some recent cases and orders that may be of interest. Appellate folks will get a kick out of a couple of the goings-on. Meanwhile, though, the work calls.

Before I go -- just one quick note on the local election involving Judge Greer, the judge in Terri's guardianship case. He won handily over Jan Govan, as reported in this story from today's St. Pete Times.

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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