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Sunday, October 31, 2004
IT Problems
A couple weeks ago, I posted about a 13+ mile run I had just finished, part of the marathon training I've been working on. I'm a casual jogger who started marathon training back in July, on the theory that I'm getting older and there's no better time to train to run a 26.2 mile-race than the present.

Maybe not. Have you ever heard of an IT band? I hadn't, even though I have two of them. Neither works. In fact, my legs don't work at all. Not since yesterday's run. It's been a long weekend. OUCH.

Friday, October 29, 2004
Here I am. Sitting at my desk. Working hard on a brief. Skipping a lunch event with the local judges. Avoiding the blog. Suddenly, poof. This picture of a cat arrives, courtesy of an old friend. So I think to myself: this cat needs a caption. After the week I've had, and looking at the cat, only one caption will do:

Be The Cat

You know, I thought of this old friend recently when I started reading this article in the last Florida Bar Journal. Good article.

Will They Or Won't They?
...challenge voters at the polls, that is. Today's St. Pete Times has this story on how the Florida Republican Party believes some felons who've not had their voting rights restored may have already voted. Challenges on election day are apparently being discussed.

For those not aware, Florida has a law that permits persons attempting to vote to have their voter eligibility challenged. The statute, which you can read here, requires that challenges be made under oath and sorted out immediately. If the issue cannot be resolved on the spot, the challenged voter is to use a provisional ballot, with the controversy to be sorted out later.

Note that challenges can be made by any elector. So if the person behind you in line to vote gives you any problems...


The Governor's Picks
Today's Palm Beach Post has this story on Governor Bush's views on some of the proposed constitutional amendments.

Questions, questions
Remember the rule challenge that I discussed earlier this week? The Florida Democratic Party filed a petition in the First District seeking to invalidate the Secretary of State's recently promulgated emergency rule concerning vote recounts.

The First District rejected the challenge in a 2-1 decision. You can read that decision here.

I have no doubt an appeal to the Florida Supreme Court is already underway. The basis for the high court's jurisdiction will be the district court's certification of the following as a question of great public importance:


Bad Timing
There's much going on right now, and much to talk about, but in the last few days, work took on an unexpected 24/7 dimension. That's left me unable to focus on posting here. I'm going to take a few more minutes this morning and post a few interesting links (in some very terse posts), but I'll otherwise be out of pocket until this afternoon, when hopefully things will let up.

By this evening, I hope to be catching up. There's case law to talk about, and I have posts to finish regarding the six proposed constitutional amendments I haven't yet discussed. And the election cases... And so on...

Schiavo News: Stay Restated
Restated by me, that is.

I'm going to try discussing the Florida Supreme Court's recent stay order, and I've removed my prior comments, which were confusing and not accurate.

Here goes: On Wednesday, Florida's high court granted Governor Bush's motion to stay the court's decision declaring "Terri's Law" unconstitutional. The order, available here, stays all proceedings in the constitutional case but does not affect the ongoing guardianship proceedings.

The court's stay order effectively leaves in place the Governor's order (issued pursuant to "Terri's Law") that Terri's feeding tube remain in place.

The court's stay will remain in effect through November 29, 2004, to allow the Governor time to seek a longer stay and review from the U.S. Supreme Court. The order indicates that the mandate will be reissued on November 30 if no further stay is granted by the U.S. Supreme Court. It is not clear whether the Florida Supreme Court's stay will remain in place if the U.S. Supreme Court also grants a stay.

Wednesday, October 27, 2004
Abstract Pause
Be back later today, folks.

Tuesday, October 26, 2004
Emergency Order Challenged in First District
Following up on the prior post, Judge Cohn's decision yesterday apparently relied on an emergency order promulgated about two weeks ago by the Secretary of State. The emergency order outlines procedures for recounting votes in Florida.

Though I haven't seen any media reports on this, on Friday, the Florida Democratic Party initiated a proceeding in the First District challenging the adoption of that emergency rule as being beyond the Secretary's power. The First District ordered a response from the Secretary by yesterday, and that response has now been filed. As I understand it, the response relies in part on Judge Cohn's ruling to support the rule's validity.

It seems there's a noteworthy interdependence between the rule and Judge Cohn's ruling. Given the extraordinary speed at which all of this election litigation is moving, it makes sense to wonder whether Judge Cohn's ruling will be immediately impacted if the First District (or the state's high court) were to declare the emergency rule invalid. It's also possible that the district court will not hear the case on its merits, deferring on the issues to an administrative forum, or that the court will not be able to rule in time to impact any recount stemming from next week's general election.

Stay tuned.

Paper Trail Suit: Lost
If you've followed the ups and downs of U.S. Representative Robert Wexler's lawsuit to require all of Florida's voting machines to utilize a paper trail, then you'll be interested to know that, yesterday, Southern District of Florida Judge James Cohn entered an order rejecting Wexler's claims on their merits. The court held a three-day trial on the matter last week. The ruling rejects Wexler's arguments that constitutional principles of equal protection require paper trails to be utilized in all Florida counties.

Read more about the ruling in this story from today's Sun-Sentinel.

For more on the case's history, see this prior post, and this one, too.

Monday, October 25, 2004
Schiavo News
The Schiavo saga apparently knows no bounds. In the Florida Supreme Court, we saw this order entered today, giving Michael Schiavo until noon tomorrow to respond to the Governor's motion to recall the court's mandate and enter a stay. That's a rather quick deadline.

Mid-day deadlines usually make me expect late-day rulings.

On another front, Michael has filed this motion with Judge Greer. In it, Michael argues that the court lacked subject matter jurisdiction on Friday when it entered an order staying the other order the court entered Friday. The stayed order denied the Schindlers' latest motion for relief from the original judgment.

I could get into the legal merits of the subject matter jurisdiction argument, but I'm going to skip that discussion because the merits seem not to matter. The motion concedes that, in all events, the trial court would have jurisdiction to enter a stay once the Schindlers have noticed their appeal of the order. That appeal will no doubt be filed as soon as might be necessary to ensure a stay remains in place. Of course, the motion could certainly be wrong about the trial court's supposed lack of jurisdiction, too.... Either way, the feeding tube is not going anywhere for the time being. No doubt, Florida's courts will resolve the Schindlers' latest motion for relief from judgment on its merits, and right now that means after the Second District has heard the Schindlers' inevitable appeal.

FYI, under ordinary circumstances, the Schindlers could file their notice of appeal as many as 30 days from the date the trial court denied their motion, and they would then have 15 days from when they filed their notice to serve their initial brief in the Second District. Expect things here to happen a bit quicker than all that.

Proposed Constitutional Amendment No. 2
Continuing my review of the proposed constitutional amendments, I'm going to take a look at Proposed Constitutional Amendment No. 2. This proposed amendment concerns citizens initiatives -- those proposals to amend the state constitution that originate not with some governmental entity but with the citizenry.

The proposal advances the date by which citizens initiatives (complete with all required signatures) must be filed with the Secretary of State prior to the election at which the electorate will vote on the proposal. Article IX, section 5 of the Florida Constitution currently sets the pre-election deadline at 90 days. Proposed Amendment No. 2 would set the deadline at February 1 in the year of the relevant general election, and would require the Florida Supreme Court to render an opinion on the validity of the proposal by April 5 of that year.

This is precisely the sort of subject that a constitution should address: the method by which our state's foundational document is amended. The question for voters is whether to approve this proposal, which, by the way, is sponsored by the Florida Legislature.

Some recommend voting against this proposal because it supposedly disfavors the less organized, lesser funded initiative drives by giving sponsors less time to get the required voter signatures collected and submitted. My local paper, for instance, has taken this point of view.

That view appears flawed and likely uninformed about the current legal process. Under the current statutory scheme, signatures are valid for four years from the time they are obtained. You can read the relevant statute (subsection (2)) here. Advancing the deadline by approximately 5 months is hardly a meaningful change in the time that sponsors have to meet the signature requirements. It's not as if there's a short window of time in which to collect signatures. You have four years from the time you start collecting them to the time you finish.

That view also ignores the reality of today's election warfare. Like everything else concerning elections at this point in time, citizens initiatives are becoming more and more contested. For instance, we've seen challenges to, and litigation over, the validity of the signatures submitted in support of the proposal. That's predictable. The current number of required signatures is 488,722 -- that's an awful lot of signatures to have to verify were actually made by properly registered voters in a proper distribution across the state, and an awful lot of signatures to squabble over if that's in your interests.

Keep in mind that promoting citizens initiatives has given rise to a cottage industry of sorts, with sponsors routinely hiring groups to collect signatures. (If you live in a well-populated area, you've probably seen signature collection tables at all sorts of public events. I live in downtown St. Pete, which hosts about an event a week at the downtown waterfront parks, and the assembly of signature gatherers at all sorts of events prior to the deadline is always formidable.) The signature-gathering groups in turn hire folks to collect the actual signatures, persons who are low paid and, by my experience, know almost nothing about the proposals they're there to advance. If you believe the allegations being made in various cases, some of the signature gatherers are meeting their (employer imposed) signature quotas by forging signatures, rather than by collecting them from the public.

Advancing the submission deadline gives the system more time to sort out these problems in a manner that is fair not only to the litigants but the courts and others involved in this process.

Another significant advantage to increasing the time between submission of a citizens' initiative and the general election is to permit time to resolve issues that may arise concerning the initiative's financial impact statement. You may recall that, in 2002, Florida voters approved this constitutional amendment, which requires "financial impact statements" (i.e., price tags) to be placed alongside citizens initiatives on the ballot. (Many think that had this sort of statement been in place prior to the vote on the class-size amendment, for instance, voters would not have approved it.)

The Legislature has set up the procedures for creating financial impact statements, getting them reviewed by the Florida Supreme Court, and revising them if necessary. Check out subsection (6) of this statute. Asking to have all of the required litigation, let alone other legal issues that may arise, resolved if the submission deadline for a citizens initiative remains 90 days prior to a general election is asking more than a lot of Florida's courts and the Financial Impact Estimating Conference. In some instances, it can be asking way too much: subsection (6)(b)4 of the above-linked statute explains that where an estimate is initially rejected by the Florida Supreme Court and no revision is approved prior to the 75th day before the election, the ballot shall simply indicate that the financial impact of the measure cannot reasonably be determined.

Think about that. If a citizens initiative is filed 90 days out from the election and the initial impact statement is not approved, we get a "no info" statement on the ballot unless the statement is revised and then approved by the 75th day from the election. Exactly how does that work? Marathon overnight work sessions for everyone involved?

Whether the recent proliferation of election-related challenges can be considered a good thing is certainly questionable, but if recent history is any indication, election litigation sure seems inevitable. Our courts and other civil servants have taken extraordinary steps to resolve these matters under unbelievable time constraints. If we wish these matters to be resolved fairly and accurately, without forcing the judiciary to perform under almost impossible time constraints, the system needs to expand the resolution period. Proposed Constitutional Amendment No. 2 will do this in the area of citizens initiatives.

If you think the current timeline is more fair to all involved than the advanced timeline set forth in Proposed Constitutional Amendment No. 2, then vote against this amendment. If you believe otherwise, vote for it.

Schiavo News
In two prior posts from Saturday, I noted newspaper reports stating that the Governor had requested the Florida Supreme Court to stay its latest decision, and I offered the view that any such motion could not be granted unless the court first recalled its mandate in the case, which had already been issued.

Well, the folks at Terri's Fight have posted the Governor's filings from Friday and it turns out the Governor has asked the high court not only to stay its decision but to recall its mandate. That's procedurally necessary for the court to consider granting the stay the Governor seeks, and it takes care of the concern I raised over the weekend.

You can read the motion to recall the court's mandate here.

Sunday, October 24, 2004
Smoker Trial Award
A Tampa jury awarded a smoker $240,000 in a case based on the notion that cigarettes are defective, according to this story in the St. Pete Times. Appeal to follow.

Legal Practice
While posting tonight, I find myself watching Boston Legal, the latest in a line of tv legal comedy/dramas. It's entertaining, like its predecessors. Purely entertaining. At least two events depicted in tonight's episode would likely get a lawyer disbarred in Florida. Probably three. And there are still 20 minutes left.

Fifth District: Hearsay (Schiavo Connection)
Over the past year, I've exchanged innumerable emails with persons who are convinced the trial court in the Terri Schiavo case should never have relied on hearsay from Terri's husband and his family regarding prior statements Terri made. (These folks doubt she actually made them.) I've tried to explain to them why hearsay in that situation was admissible and that hearsay is often admissible.

In that vein, here is a decision from the Fifth District in which the court affirmed a criminal conviction based solely on hearsay. The case includes an interesting Confrontation Clause discussion. Now, the reasons the hearsay was admissible in this case have nothing to do with the hearsay utilized in the Schiavo case, but I point it out simply as an example of how a myriad of reasons allow hearsay to be admitted in a particular case.

Supreme Court & Fifth District: MRTA & Statutory Ways of Necessity
Does Florida's Marketable Record Titles Act apply to statutory ways of necessity established under section 704.01? In a 1999 decision, the Florida Supreme Court said yes, it does.

However, in this decision released by the Fifth District on Friday, the district court held that the supreme court's 1999 language was dicta and thus not a binding holding. Conflicting with a Second District decision (in addition to the high court's statement), the Fifth District concluded that statutory ways of necessity survive despite application of the Marketable Record Title Act. The court also certified a question of great importance to the Florida Supreme Court.

That question no longer needs to be answered, and I assume the Fifth District will modify its opinion to conform to this decision released one day earlier by the Florida Supreme Court. The high court disapproved the Second District's conflicting decision and reached the very result made here by the Fifth District. So there's no longer any conflict, and no need for a certified question.

Fourth District: Employee Depositions
Trial lawyers should take note of this decision from the Fourth District, which clarifies that an employee's deposition may be read by an adverse party at trial regardless of whether the employee is available for trial.

Fifth District: PIP Coverage for Med Services By Contractors
Those involved in PIP medical insurance coverage litigation will be interested in this decision from the Fifth District. The court held that services provided by use of an independent contractor can constitute medical services under section 627.736(5)(a).

Saturday, October 23, 2004
Schiavo News, Thoughts
Today's Tampa Tribune has this update on the Schiavo saga. It describes several items that seem noteworthy.

First, the story states that the Governor has filed a motion asking the Florida Supreme Court to stay its decision while the Governor pursues an appeal in the United States Supreme Court. This is bizarre for a couple of reasons.

It would be a rare thing indeed for the state supreme court to stay its decision while a litigant seeks U.S. Supreme Court review. Most litigants just ask the U.S. Supreme Court to enter a stay.

What seems dispositive here, though, is that the Florida Supreme Court has already issued its mandate in the case. A mandate is an appellate court's final directive to a lower court, and its entry signals the end to the appellate court's jurisdiction in the case. While it may be possible that the Governor's motion was filed prior to the mandate's entry, it would seem that the court is without jurisdiction even to consider granting a stay request unless the court first recalls its mandate. That would seem highly unlikely, especially if no motion asking for that relief is before the court.

The second noteworthy item from the Tribune's story concerns the comments of Michael Schiavo's attorney. According to the story, the Governor filed his stay motion after Michael's counsel stated Michael would attempt to remove the feeding tube as early as Friday. (I assume that means next Friday.) Such a statement seems nonsensical. Judge Greer ruled yesterday that the Schindlers' latest motion fails to state a claim for relief. The Schindlers have a right to appeal that decision, a right that would be completely nullified if Terri's feeding tube were to be removed before that appeal could be completed. Florida's appellate courts have proven their sensitivity to this point. It's simply not going to happen that Terri's feeding tube is removed before that appeal is completed. Period.

The last noteworthy item from the story concerns the Governor's counsel's statement that the appeal to the U.S. Supreme Court will ask that court "to restore the balance of power between Florida's judicial branch and the legislative and executive branches." It would seem unlikely that any appeal to the nation's high court is actually going to concern the balance of power among the branches of a state's government, and even less likely that the U.S. Supreme Court would hear such a case. The U.S. Supreme Court resolves federal issues, not state issues, and then only extremely significant federal issues.

Schiavo Posts
I've noticed that many folks are making their way to this blog to find information on the Terri Schiavo case, so I've gone ahead and updated the "2004 Schiavo Posts" page to reflect all of Abstract Appeal's 2004 posts concerning the Schiavo saga through yesterday. It's an awfully large page, as there have been an awful lot of Schiavo posts.

If you're new to the Schiavo litigation, you can find links to Abstract Appeal's 2003 and 2004 post compilation pages at the top of the left column of this page. Find some spare time -- well, maybe a spare day -- and feel invited to catch up.

Schiavo Thought
I see from some wire reports that Governor Bush may have filed a motion in the Florida Supreme Court asking it to stay its decision while an appeal is filed with the United States Supreme Court. I'm about to run out the door (literally) for my weekly distance run, so I'll have to post about this at length later today. For now, I'll comment that if those reports are true, the motion seems certain to be denied. As I'll explain later, Florida's high court has already issued its mandate. The case there is over unless the court is asked to, and does, recall that mandate.

Friday, October 22, 2004
Schiavo News
You may recall that, some months ago, the Schindlers filed a second motion for relief from Judge Greer's original judgment regarding Terri's wishes. The new motion, which you can read here, alleged that Pope John Paul II's statements last March regarding feeding tubes would cause Terri to change her mind regarding whether she would decide to continue receiving her feeding tube. (You can read the Pope's statements here.)

Today, Judge Greer ruled that this latest motion fails to present a sufficient basis for relief from the prior judgment. You can read Judge Greer's order here. The order does not disagree with the Pope's statements, or make any interpretation of them. Instead, the court ruled that, based on the court's earlier findings regarding Terri's religious convictions, nothing stated in the motion shows that Terri would change her mind.

Judge Greer also entered a second order staying his ruling on the motion for relief until December 6, 2004. You can read that order here.

Simply put, this means that the Schindlers have lost their most recent effort to overturn Judge Greer's original decision regarding Terri's wishes, and they will now have an opportunity to appeal Judge Greer's latest order to the Second District Court of Appeal.

That's where I was today. Caught. I attended the Appellate Practice Section's Hot Topics seminar in Miami. (Which was great, by the way.) I had my laptop, but the hotel offered no public wireless Internet access. I had my Treo, but I neglected to charge the battery fully before I hopped the plane and the phone's charge ran out around noon. So there I was, caught with lots of equipment but no way to use it... I'm in the Ft. Lauderdale airport now, waiting for my flight home. The airport offers free wireless Internet access. Thank goodness.

I see that Judge Greer issued his order in the Schiavo case. Need to blog that right away...

Thursday, October 21, 2004
Schiavo News
As you can read in this order, the Florida Supreme Court has denied Governor Bush's motion for rehearing in the Schiavo case. The court's decision declaring "Terri's Law" unconstitutional is thus final.

I've already been asked about whether an appeal to the United States Supreme Court would stay the case and prevent Terri's feeding tube from being removed until that appeal is resolved. The answer is that it could, if the U.S. Supreme Court were to grant a stay. Unlike the situation under Florida law, a decision by the Governor to appeal would bring no automatic stay. Governor Bush could file a motion requesting a stay, and the court could grant it. I'll post more on this topic later -- for now, the ongoing proceedings before Judge Greer pretty much ensure that Terri's feeding tube will not be removed in the immediate future.

Proposed Constitutional Amendment No. 1
I'm going to begin discussing, from a legal perspective, the proposed constitutional amendments that are on the Florida ballot this election. It seems logical to start with the first proposal, which concerns the contentious issue of abortion. I'm not going to express (or imply) any view on whether anyone should vote for or against this amendment, so please don't take my comments in one of those directions. I'm simply going to discuss the legal issues surrounding this proposal. As with all of the amendments, I will try to focus on what the amendment says, what it changes, why that change is being promoted, and what the legal impact of the amendment will be.

The text of the first proposed constitutional amendment reads as follows:

The legislature shall not limit or deny the privacy right guaranteed to a minor under the United States Constitution as interpreted by the United States Supreme Court. Notwithstanding a minor's right of privacy provided in Section 23 of Article I, the Legislature is authorized to require by general law for notification to a parent or guardian of a minor before the termination of the minor's pregnancy. The Legislature shall provide exceptions to such requirements for notification and shall create a process for judicial waiver of the notification.
The first sentence -- no doubt strategically placed to begin the proposal with such a noble declaration -- is substantively awkward. Declaring that the Legislature shall not abridge anyone's rights provided under the federal constitution, as interpreted by the United States Supreme Court, is in large measure pointless, since the supremecy of federal law would make any state law contravening federal rights invalid anyway. But there's more here. The Florida Legislature proposed this amendment, and the reference to federal law as interpreted by the federal high court, as opposed to Florida's own high court, is, to put it nicely, a bit of a poke. (I'll get to why the Legislature would do that in a moment.) The first sentence also serves another purpose -- it confirms that the amendment is meant to be read in harmony with federal law, something that may be significant if any state legislation based on this amendment were to be seen as potentially conflicting with federal law.

The second and third sentences of the proposal are its heart. They empower the Legislature to enact laws that require a minor's parents to be notified before her pregnancy can be terminated, and to enact a judicial process for getting around the notification requirement in individual cases.

You might wonder why the Legislature cannot pass such laws without such an amendment. It has tried, and the Florida Supreme Court has declared the efforts unconstitutional. To be more specific, the Legislature has previously passed two laws relating to abortion and minors. The first law required parental consent before a minor could terminate her pregancy, though it left an option for minors not able or willing to obtain parental consent to obtain instead a judge's permission to avoid the requirement. The Florida Supreme Court interpreted Florida's constitutional right to privacy to apply to abortions and to minors and, finding the law too great a burden on that right, declared it unconstitutional.

Years later, the Legislature took a different approach and passed a law requiring not parental consent but parental notification before a minor could terminate her pregnancy. The law again included a procedure where minors unable or unwilling to have their parents notified could seek permission from a court to avoid the requirement. The Florida Supreme Court again declared the law unconstitutional as violating minors' right to privacy under the Florida Constitution. That decision was released in 2002, and you can read it here.

By the way, under both prior laws, the person whose conduct was directly regulated was the medical person performing the procedure. The law required that person to ensure that the consent or notification requirement had been met. The laws did not directly require a minor to do anything and punish her for not doing so. Also, the laws in both instances were rather detailed and contained various exceptions and qualifications. I'm necessarily oversimplifying in this discussion.

Needless to say, the Legislature thinks the Florida Supreme Court has read the state privacy right too broadly and that it does not give minors an unfettered right to undergo abortion procedures without their parents' knowledge. As a result, the Legislature proposed this constitutional amendment, which is the only way to change Florida's constitutional law as it has been interpreted by the Florida Supreme Court. If the proposal passes, the new amendment will permit the Legislature to adopt another parental notification law, and it will preclude the Florida judiciary from declaring that law unconstitutional under Florida's constitutional right to privacy.

Here's some additional legal context on the federal and state levels.

The United States Supreme Court has held that parental notification laws, along with a judicial bypass component, do not violate the federal constitution's right to privacy. You can read one of those decisions here.

Florida law generally prevents anyone from performing any sort of medical act on a minor child without the minor's parent's permission, since the act can be considered a common law battery. Florida also has specific statutes requiring various levels of parental involvement in other medically-related situations. For instance, under this statute, a minor must have written, notarized parental consent before getting a body piercing, and minors under 16 cannot have their bodies pierced unless they are accompanied by a parent. Under this statute, a minor cannot use a tanning salon without a parent's written consent, and minors under 14 must be accompanied by a parent to use a tanning device. And under this statute, a minor cannot obtain a tattoo without a parent's written consent.

In the end, the issue presented by this proposal can be seen in either, or perhaps both, of two ways, depending on your personal views. It can be seen as an effort to encroach on a minor's constitutional right under Florida law to obtain an abortion without undue interference. The proposal can also be seen as an effort bring Florida law in line with federal law and not allow minors' privacy rights to override a legislative determination that parents should be informed when their minor children undergo abortion procedures.

Proposal Talk
While I've followed some of the news reports, I've not yet offered my own thoughts regarding Florida's proposed constitutional amendments. That'll change around midday today, when I'll start doing my best to offer folks an objective, legal view of what's being offered on the 2004 ballot and what it all means.

Manual Recount Suit, Rocketing Forward
Remember this post from not quite a month ago, describing how the Eleventh Circuit remanded U.S. Representative Robert Wexler's manual recount lawsuit back to a federal district court for trial? Well, the trial's just wrapped up, and today's Palm Beach Post has some early details in this report. You can also check the old post for more on the case and a link to the circuit court's decision.

Third District: Binding The Blind
Can you avoid a contract on grounds you were legally blind when you signed it? In this case, which concerned an arbitration agreement, the Third District said no.

Second District: Tax Unconstitutional, Unconstitutional
This decision released yesterday by the Second District is significant in two respects. The decision declared unconstitutional Florida's tax on citrus production because the tax is used to fund a state-run marketing campaign -- i.e., compelled speech. Monetarily speaking, this is a tremendous blow to the Department of Citrus and a huge victory for citrus growers.

The case is also interesting because it has the rather rare distinction of offering two opinions, both of which are majority opinions of the court.

The first opinion was written by Judge Dakan (of the Sarasota trial bench) and was expressly joined by Judge Salcines. Separately, Judge Casaneuva wrote an opinion expressing that he fully concurred in Judge Dakan's opinion and offering additional thoughts on the still-evolving case law in the tax-to-compel-speech area. Judge Casaneuva's opinion was also joined by Judge Salcines, making the opinion also one agreed to by a majority of the panel's judges.

Third District: Lookout Warnings and Obstructing Justice
If a lookout spots nearby police officers and shouts that information, in a bit of code, to those engaging in a drug deal, has the lookout committed the crime of obstructing justice? Check out the interesting majority and dissenting opinions in this case from the Third District.

Wednesday, October 20, 2004
Eleventh Circuit: Welcoming You To The World Of Wiki
The preceding post discussed the substance of this recent opinion from the Eleventh Circuit. There's one noteworthy aspect of the opinion, though, that I did not mention. In describing the Homeland Security Advisory System, Judge Tjoflat cited Wikipedia. In text, no less. (Page 16.)

Let's put this in perspective. According to the well indexed annals of Westlaw, this was the first time the Eleventh Circuit has cited Wikipedia. It's also the first time any federal court of appeals has cited Wikipedia. And it's only the third time that any American court has cited Wikipedia: three weeks ago, a federal district court cited Wikipedia in a footnote, and three months ago, Michigan's high court cited Wikipedia in a footnote.

So this was the first time any American court has cited Wikipedia in text, and the first time any federal appellate court has cited Wikipedia at all.

So is it Judge Tjoflat himself who is the encylopedic adventurer, or a bold young law clerk? Or both? I'll play it safe and guess both.

Why the hubbub? Wikipedia is a truly modern device. It's a free, Internet-based, incredibly detailed, massively hyperlinked encyclopedia. It's also written by people like you and me. Entries and updates are submitted around the clock by the public at large. (Well, maybe the geeky, blogs-are-old-school-I'm-going-to-write-an-Internet-encyclopedia part of the public at large.) To date, Wikipedia has about 375,000 articles in its database, and they grow and morph on a daily basis.

It will be interesting to watch and see if Wikipedia citing truly catches on in opinions or appellate briefs. It's possible that it will not, perhaps out of concern that the person citing an entry is directly or indirectly responsible for the entry's contents in the first place. I doubt that, though. Wikipedia and projects like it are the future.

Eleventh Circuit: Protesters' Protest
This decision from the Eleventh Circuit is just chock full of notable items. Issued this past Friday, the court held that metal detector searches of protesters outside Georgia's Ft. Benning, which houses the U.S. Army's School of the Americas, violate the First and Fourth Amendments.

Hmmm. Where to begin? Factually, the case's backdrop is interesting, though it's understated in the opinion. The SOA "trains military leaders from other countries throughout the Western Hemisphere in combat and various counterinsurgency techniques," the court explained. The court also offered the protesters' point of view, that the SOA "bolsters military dictatorships by training their leaders how to kill, to torture, and otherwise to suppress their citizens." I'll avoid the obvious jokes about law school.

Legally, the case offers some gems. The First and Fourth Amendment discussions are very thorough and will give constitutional fans a heaping dose of solid con law, including a rare "unconstitutional condition" analysis. A strangely interesting part of the opinion, though, is the mootness examination. The court acknowledged that the specific protests at issue in the case were over and that the case was accordingly moot. Nonetheless, the court found the case reviewable, as one capable of repetition and yet evading review. The court did so despite a footnote mentioning that damages were not at issue in this case (because the trial took place before the searches were conducted) and that the protesters were free to litigate damages claims over the now-completed searches. Of course, the damages litigation could not have concluded before one or more additional years of the annual protests would occur, but the court did not frame the mootness analysis in these terms. Ultimately, the opinion offers a strong basis for arguing that, in the First and Fourth Amendment contexts, mootness on appeal may likely be overcome where additional, repeated constitutional violations are plainly on the horizon.

The mootness discussion included a reference to a 2001 case in which the court held that election periods are too short to fully litigate the constitutionality of a law before a given election ends. That's no doubt still true, but it has to be said with a bit of a smile after watching the Florida courts rocket through some recent election cases in a matter of weeks -- a process we should appreciate but not come to expect.

There is one final point to make about this case, but I'm going to blog it separately in the next post. It's trivial, but it's good trivia.

Tuesday, October 19, 2004
Eleventh Circuit: Expert Testimony
If you set out to find an Eleventh Circuit case that explored, in detail, the substantial discretion afforded a trial judge in evaluating an expert's qualifications to render an opinion and the reliability of that opinion, you would need to look no further than here. You'd have found yourself 127 pages of en banc bliss on the subject, complete with a special concurrence and a dissent. Also, if you are an appellate lawyer, you might come away from the case questioning whether, especially in civil cases, you will ever have a realistic hope of succeeding with an expert-related appeal.

For the trivially oriented, I point out that the majority, two concurring, and dissenting opinions in this 127-page case presented a total of 76 footnotes. One of them, note 21 of the majority opinion, spans three pages of single-spaced text. So, in this year's longest footnote event, I believe we have a new leader.

Eleventh Circuit: Arbitration
Arbitration fans will be interested in this decision from the Eleventh Circuit. The court addressed the circumstances under which NASD members may be compelled to arbitrate with customers, and how broad the term "customer" is.

Eleventh Circuit: Freedom of (Religious) Speech In School
If a school allows students to paint murals on a temporary wall used to cover a construction area, and the school requires a student who painted religious messages to remove them, has the school violated the student's right to speak? Not in this case recently decided by the Eleventh Circuit.

Appellate Reminder
Today's the monthly lunchtime teleconference for the Appellate Practice Section of The Florida Bar. Section members are reminded to grab a lunch and join in for the call's 12:10 start. The topic will be the insurmountability of the PCA.

Eleventh Circuit: Child Pornography
Anyone who enjoys constitutional law, particularly case law addressing the constitutional limitations of Congress's powers, will be very interested in this decision from the Eleventh Circuit.

Addressing the conviction of a St. Petersburg man for possessing child pornography on computer disks, the court first held that the disks' movement in interstate commerce was sufficient to satisfy the federal jurisdictional element of 18 U.S.C. section 2252A(a)(5)(B).

However, under the specific facts of the case, the court went on to hold that the storage media's out-of-state origin was not sufficient to permit congressional regulation of the defendant's activity under the Commerce Clause. The court's discussion is hardly short but is thorough and terribly interesting.

Eleventh Circuit: Environmental Law
This divided decision from the Eleventh Circuit should interest those involved with environmental law. The court addressed standing, subject-matter jurisdiction, and a host of other issues in connection with claims under the Clean Water Act and the Resource Conservation and Recovery Act.

Catching Up
The heavy workload that delayed some of my state case law posts earlier this month also took its toll on my discussions about some very noteworthy Eleventh Circuit opinions. I'll get to them over the course of today.

Fifth District: Easements
Land use fans will be particularly interested in this decision from the Fifth District. It covers a number of points, including that a person owning two adjoinding parcels of land in the same right cannot create an easement over one in favor of the other.

The court also acknowledged something about the judiciary's equitable powers that bears repeating once in a while: "Courts of equity simply have no power to issue rulings which they consider to be in the best interest of justice without regard to established law." In other words, a court's equitable powers are not unbounded. The court must still follow the law, even if application of that law produces a result that, between the parties in the case, seems unfair. That's what we mean in saying we are governed by the rule of law.

Monday, October 18, 2004
Supreme Court: Provisional Ballot Precinct Challenge Rejected
Early voting starts today in Florida, and just in case any elections supervisors were wondering whether Florida's precinct requirements are constitutional under Florida law, we have an answer. Today, in this decision, the Florida Supreme Court rejected the AFL-CIO's constitutional challenge to the Florida statute requiring that provisional ballots be cast only in voters' correct precincts.

The case had previously been rejected by a Tallahasee trial court (Judge Smith) and transferred to the supreme court for immediate resolution, given the pending election. The court heard oral arguments this past Wednesday.

Provisional ballots are used when a person appears at the polls and finds himself or herself not listed as a registered voter. The person can cast a provisional ballot, which is held until elections officials confirm the person is in fact qualified to vote. Importantly, though, as with voters who are on the voting rolls and cast actual ballots, those who cast provisional ballots must do so in their assigned voting precincts. The petitioners in this lawsuit sought to invalidate the precinct requirement, claiming that it was an unconstitutional restriction on the right to vote under Article VI, sections 1 and 2 of the Florida Constitution.

In a very short, 7-page opinion, a unanimous Florida Supreme Court rejected that argument. The court held that the precinct requirement for provisional ballots is indistinguishable from the precinct requirement for actual ballots and that neither is an unconstitutional restriction on the right to vote. The court viewed the precinct requirement as a permissible regulation on the voting process, not an impermissible voter qualification.

The analytical portion of the decision is only about one page long. The unanimous court also indicated that no rehearing will be permitted. These facts suggest that the court did not find the petitioners' arguments very strong.

Had the petitioners' argument prevailed, it would seem that voters could appear at any precinct in their county of registration and demand a provisional ballot if their names were not on the voter rolls, as would always be the case in every precinct except the single one where they should be listed. That would pretty much have gutted the entire precinct concept.

If this is the last elections case the supreme court must decide, it's going to be a marvelous election.

Thoughts From Major Harding
Today's Tampa Tribune has this very interesting story, which reflects Former Chief Justice Major Harding's thoughts on the 2000 election crisis and the latest presidential election, now underway.

Second District: Premises Liability
The facts of this case have the ring of a law school tort exam. If you've an interest in premises liability, check out how the Second District addressed the situations of an allegedly misleading private way and a pipe used to block off-road access onto private property.

Second District: Contingency Fees
Plaintiffs' lawyers may be interested in the Second District's decision in this case, which rejected an effort to expand the traditional limits on an attorney's ability to recover, post-withdrawal, a contingency fee from a former client.

Second District: Copyright Preemption
Deep in the heart of this business dispute decision, the Second District engaged in a copyright preemption analysis concerning state law claims. Intellectual property fans may be interested.

Second District: Discovery of Others' Records
Trial attorneys may wish to check out this decision from the Second District. A trial court in a nursing home case compelled disclosure of various records relating to persons other than the decedent in the case. The home sought a writ of certiorari from the Second District on grounds of irrelevancy and medical privacy. The district court granted the writ, but only with respect to the privacy argument. The district court held that proper steps to protect other residents' privacy should be followed but otherwise permitted the discovery.

Second District: High-Profile Dissolution
Lest anyone think otherwise, the public airing of otherwise private information in a dissolution proceeding affects attorneys, too. Here's an example.

Second District: Pre-Judgment Interest and Settlement Proposals
This decision from the Second District confirms that prejudgment interest need not be specially pled as an element of damages and can be recoverable, under certain circumstances, when raised only after a jury verdict is returned. Also, while examining the validity of a proposal for settlement, the court used a footnote (number 4) to explain the lack of conflict in existing case law regarding proposals by vicariously liable defendants.

Friday, October 15, 2004
Second District: Entering the Knowles Divide
Florida's district courts of appeal are divided over whether, under a law in effect from 1986 to 2001, a nursing home resident's estate could bring a claim against a home for violating the resident's Chapter 400 rights if the violation did not result in the resident's death. The relevant statutory language provided:

The action may be brought by the resident or his or her guardian, by a person or organization acting on behalf of a resident with the consent of the resident or his or her guardian, or by the personal representative of the estate of a deceased resident when the cause of death resulted from the deprivation or infringement of the decedent's rights.
(emphasis added).

In 2000, the Fourth District, sitting en banc, unanimously ruled that the plain language of this statute only permitted estates to bring residents' rights claims if the alleged violation resulted in the resident's death.

Earlier this year, in this decision, the Fifth District disagreed. That court found the statutory language ambiguous and looked for guidance to the Legislature's 2001 amendments to this statute, which permitted an estate to sue for any violation causing injury.

Today, the Second District weighed in on this split and agreed with the Fourth District that the former statute's language was unambiguous and its plain meaning controls. You can read the Second District's decision here.

To add a little context here, the significance of the dispute is really about attorney's fees. The pre-2001 version of the statute permitted a successful plaintiff to recover attorney's fees as well as compensatory damages. When the Legislature amended the statute in 2001, the Legislature changed the language to provide that estates could sue for any violation causing injury but took away the ability to recover fees.

To add a little trivia here, the Fourth District certified a question of great public importance concerning this interpretation issue in 2000. The Florida Supreme Court heard oral arguments on that issue on August 31, 2001. No decision yet.

Appellate Reminder No. 2
Next Friday, in Miami, the Appellate Practice Section of The Florida Bar hosts its annual Hot Topics Seminar. I'm helping coordinate this one, so I'll be down there and will likely be introducing two of the speakers, electronic filing guru Judge Martha Warner and the incredible Kendall Coffey. Great speakers. Great topics. (A timely bonus, Kendall's going to speak on hot topics regarding elections cases -- can't imagine what he'll have to talk about...)

Be there if you can. For more info, look here.

Appellate Reminder No. 1
Tuesday will be the monthly lunchtime teleconference for the Appellate Practice Section of The Florida Bar. Section members are reminded to grab a lunch and join in for the call's 12:10 start. The topic will be the insurmountability of the PCA.

Eleventh Circuit Reminder
A bevy of posts since yesterday pm has pushed down my post about the recent decision approving the recess appointment of Judge William Pryor to the Eleventh Circuit. That's a terribly interesting decision in the appellate community (and some political circles, too). If you're among the interested, be sure to scroll down to it.

Fourth District: The Value of A Dollar
Those with an interest in family law may wish to check out this decision from the Fourth District, which highlights the distinction between terminating alimony and reducing it to, say, a dollar a month.

Fourth District: Abortion Law Found Unconstitutional
The "Women's Right To Know Act" (see subsection (3) of this statute) required physicians to provide women with certain information and to obtain their written consent prior to terminating their pregnancies. In this decision, the Fourth District affirmed a trial court's rulings that the act violates the Florida Constitution's right to privacy provision and is unconstitutionally vague. This law had been challenged from its enactment and was never enforced.

Questions, questions
Just over a year ago, in Sarkis v. Allstate, the Florida Supreme Court held that contingency risk multipliers cannot be used when calculating fees under Florida's offer of judgment statute. The Fourth District has now expanded that rationale to encompass fee awards under section 44.103, the court-ordered, nonbinding arbitration statute. The district court was not entirely sure of its conclusion, though, and certified the following to the Florida Supreme Court as a question of great public importance:

Those interested in this topic may wish to refer back to this prior post, where I discussed a related but broader question certified by the Fifth District. By the way, the losing party in the Fifth District's case petitioned for review of that decision back in February, and the high court has not yet decided if it will take the case.

Fourth District: Workers' Compensation
Workers' comp fans may find this decision of interest. The Fourth District held that a workers' comp insurer who paid an employee benefits cannot recover a share of the proceeds the employee recovered from a spoliation claim against the employer, proceeds the insurer would have been able to recover had the employer not spoliated evidence and the employee been able to recover the same money from the third-party tortfeasor. Chief Judge Farmer dissented.

Fourth & Fifth Districts: Blakely Impact
Or lack thereof. Those following the state-court impact of Blakely v. Washington may wish to check out this decision from the Fourth District, which rejected retroactive application of Blakely in post-conviction proceedings to proof of prior convictions for purposes of habitual offender sentences. The Fifth District reached the same result here.

Thursday, October 14, 2004
Third District: Upset
It's uncommon for an appellate decision to call out attorneys by name for their improper conduct. It's also uncommon for an appellate court to sanction an appellee and the appellee's attorneys for misleading the trial judge and maintaining unsupportable positions. I suppose, then, that this decision from the Third District is a rarity. It did both.

Third District: Rehearing Granted
Here is an example of a case that's as significant for what it used to say as what it says now. Back in April, in this post, I mentioned how the plaintiffs' bar would surely approve a certain Third District decision. The decision upheld a jury verdict against an employer, and in favor of an employee, based on the employer's actions in allowing employees to use a rickety ladder. The appellate court held that the jury was free to find that the employer's conduct was substantially certain to injure the employee, negating the employer's immunity under Florida's workers' compensation scheme.

Well, the employer moved for a rehearing. The court granted the motion, and, voila, the court changed positions. The new opinion, available here, relies on a recent state supreme court pronouncement that the intentional tort exception to workers' compensation immunity must be narrowly construed. Viewing the evidence, and prior case law, in that light, the court held that a substantial certainty of injury exists only where the employer attempts to cover up a danger, precluding the employee from making reasonable decisions for the employee's own protection. The evidence in the case did not meet that standard, and the appellate court remanded for entry of judgment in the employer's favor.

Nice win, Bob and Annette.

Eleventh Circuit: Judge Pryor Appointment Challenge Rejected
This order is sure to rocket through the appellate world. The Eleventh Circuit has rejected a challenge to President Bush's recess appointment of Judge William Pryor.

Here are the highlights:

-- the court first rejected the notion that the matter under consideration was jurisdictional, noting that there was no need for the court to have have taken up the question sua sponte

-- the court next held that recess appointments to Article III courts are allowed under Article II, Section 2, Clause 3, of the United States Constitution

-- the court next held that an intrasession recess is a "Recess" for purposes of the Recess Appointments Clause and that the vacancy being filled need not have first arisen during the particular recess

-- the court finally held that whether Judge Pryor's appointment was improper, in light of the ongoing Senate filibuster blocking a full vote on his confirmation, was a non-justiciable political question

The decision constituting the court's order is signed by Chief Judge Edmondson, and it concludes with a terribly interesting footnote (note 14) about why the court opted not to certify the case directly to the United States Supreme Court. One line in the note reads as follows:
[I]t is not the nature of this Court of Appeals to blink because a case is hard or sensitive.

Judge Barkett dissented on the merits. She would have ruled the appointment outside the scope of the Recess Appointments Clause.

Judge Wilson also dissented, but not on the merits. He would have certified the case to the U.S. Supreme Court for immediate resolution.

Second District: Consensual Stop Conflict
As you're walking down the street, a police cruiser pulls up next to you. Not a stop. The officer gets out, walks up to you, and asks you for some identification. Not a stop. You hand the officer your identification. Still not a stop. The officer then takes the identification back to the police cruiser and runs an identification check on you. Stop?

That's the question underlying a conflict between the Second, Fourth, and Fifth Districts. The Fourth District has held that walking away with the identification is a stop because at that point you do not feel free to leave. The Second and Fifth Districts posit that a reasonable-duration identification check is implicitly authorized when you give the officer your license.

The Second District's most recent case pointing up this conflict is available here. The discussion is tactfully presented by Judge Wallace, who almost seems uncomfortable with the Second District's controlling precedent. Maybe I'm reading too much into it. Anyway, the Florida Supreme Court is currently addressing the conflict, and the justices are surely giving the case hard thought. The oral argument was held May 5, 2003.

First District: Voluntary Intoxication
This decision from the First District may be of interest to those who wonder whether taking too much prescription medication can now be a defense to a crime requiring specific intent.

Some of you may wonder what a specific intent crime is. Specific intent crimes are those where the defendant must specifically intend to achieve the criminal objective. Examples include first degree murder, robbery, and burglary. By comparison -- and I'm oversimplifying -- a general intent crime is one where the defendant only needs to have intended to commit the acts that comprise the offense. So if first-degree murder was a general intent crime, I would only need to intend to pull the trigger to be convicted of murdering the person I shot and killed. Because it's a specific intent crime, though, I have to have intended not only to pull the trigger but to kill the victim.

Third District: Model Opinion?
The Third District's decision in this case consists entirely of the following:

Under the unique and peculiar circumstances in this case, we determine the trial court’s dismissal of this action was too harsh a sanction. Accordingly, we reverse and remand. The trial court can, however, consider other sanctions, such as fees and costs, should it deem them fit and proper.
Reversed and remanded.
Well done. If the decision is based squarely on the case's unique facts, then why add those facts to the jurisprudence?

Second District: Chief Judge Altenbernd On Real Property "Reverter" Clauses
Chief Judge Altenbernd understands why a dissolution judgment may provide that a former spouse's failure to make timely mortgage payments will result in the property "reverting" to the other spouse. But, in his concurring opinion in this case, he alerts family law practitioners to consider the possible inequities that can arise in connection with such provisions.

First District: Voluntary Consent
There's a future episode of your favorite legal drama somewhere in this decision from the First District. A 13-year-old's confession was held not have been voluntarily given after a detective and his aunt's lesbian partner lied about having a videotape of the youth's illegal touching of his cousin.

Second District: Setting Aside Implied Consent to a TPR
This decision addresses a rather narrow slice of the legal pie: the procedures for setting aside the finding of implied consent that arises when a parent fails to appear at a termination of parental rights hearing. What caught my eye about the case was the Second District's attention to detail in noting (note 3) how the "existence of a meritorious defense" prong of the typical analysis for setting aside defaults may need to be tweaked in the TPR context. May.

Case Law
A whole bunch of case law posts coming later this morning...

Wednesday, October 13, 2004
Derailing The Effort To Derail The Effort To...
Proposed Constitutional Amendment No. 6 would "derail" the high speed rail amendment that voters approved back in 2000. To learn a bit more about who supports this new amendment (i.e., derailing the bullet train) and who opposes it, check out this story from the St. Pete Times.

Proposed Amendment 4
A lawsuit is pending in Tallahassee that seeks to invalidate Proposed Constitutional Amendment No. 4 on grounds that too many of the voter signatures used to get the proposal on the ballot are invalid. (Remember this post?)

You can read the rather interesting complaint in the case here.

According to this story in yesterday's St. Pete Times, the trial judge, Nikki Clark, has rejected an immediate effort to enjoin placing the proposal on the ballot and instead set a trial date for January 31, 2005.

That's good news for the proposal's proponents, but it does raise the question of whether we could be headed for another Armstrong v. Harris situation. Armstrong, you may recall, was the decision invalidating a voter-approved amendment to Florida's cruel/unusual punishment constitutional provision after voters had already approved the amendment. A fractured court held that the ballot title and summary were inaccurate and misled the voters.

Provisional Balloting Case
The Florida Supreme Court heard oral aguments in the provisional balloting case this morning. We're now waiting on the opinion.

I'm Back...
I had to disappear there for a couple days. Saturday through Tuesday evening was basically a big blur, with a lot of work product going out the door. I'm back now, though. Lots going on. Lots to post.

Monday, October 11, 2004
Schiavo News
Michael Schiavo has filed his opposition to the Governor's motion for rehearing.

You can read the motion here, and you can read the newly filed opposition here. No surprises. The opposition simply argues that the court has already considered, and rejected, the arguments raised in the motion for rehearing. That's standard fare for an opposition.

Schiavo Thoughts
A number of folks have written me about columns that bemoan the Florida Supreme Court's decision declaring "Terri's Law" unconstitutional.

The first such column I recall was this piece in National Review, written by a lawyer who's fighting for Terri's parents. Most recently, as in today, the Sarasota Herald-Tribune published this piece by columnist Rod Thompson.

Both pieces call the supreme court's decision wrong. They each cite examples of other situations involving the governor's power to act that are supposedly inconsistent with declaring Terri's Law unconstitutional. Apparently these sorts of examples are sparking great debate in the modern version of public squares -- Internet message boards -- and I'm finally giving in to the pressure to say something. So let's take a look.

Coincidentally, both the Herald-Tribune column and the National Review column start with the idea of the governor's pardon power. The argument is that governors regularly overturn final judicial decisions finding people guilty of crimes by granting pardons, so how can it be unconstitutional for Terri's Law to overturn the decision in Terri's case? A real good answer to this question would take quite a while to read and even longer to write. I'll give the single best distinction: unlike Terri's Law, the governor's pardon power (more accurately referred to as executive clemency) is part of Florida's constitution and the very framework of our government. Article IV, section 8 of the Florida Constitution provides in part:

(a) Except in cases of treason and in cases where impeachment results in conviction, the governor may, by executive order filed with the secretary of state, suspend collection of fines and forfeitures, grant reprieves not exceeding sixty days and, with the approval of three members of the cabinet, grant full or conditional pardons, restore civil rights, commute punishment, and remit fines and forfeitures for offenses.
(b) In cases of treason the governor may grant reprieves until adjournment of the regular session of the legislature convening next after the conviction, at which session the legislature may grant a pardon or further reprieve; otherwise the sentence shall be executed.
Remember, the separation of powers provision states that no member of any branch can exercise the powers of any other branch "unless expressly provided herein." The governor's and the legislature's clemency powers are "expressly provided" therein, so by the provision's very terms those powers do not violate the separation of powers concept.

Another coincidence, the second example given in both the National Review column and the Herald-Tribune column concerns a court's child custody decision and a state agency's ability to step in to change custody in cases of abuse. This argument is based on poor information. First, while Florida's statutory child protection scheme is complex, in the end the state agencies do not make "custody" decisions; rather, they apply to courts for authority to remove children from abusive situations on an emergency or temporary basis, they apply to courts to have children declared dependent on the state for care, and they apply to courts to have parents' parental rights terminated. All of those decisions are made regardless of whether a judge previously awarded a parent "custody," and in none of these situations is a state agency overturning a court decision.

Also, Florida law is clear that once a custody decision is final, even courts cannot revisit the decision unless the party requesting a change proves a "substantial change in circumstances." In other words, the courts never truly revisit an old custody decision. Instead, they decide if circumstances have changed in a material way, and if they have, then the courts go forward and make a new decision. "Terri's Law" did not require a substantial change in circumstances to trigger the Governor's authority to act.

A third example given in the Herald-Tribune piece concerns the Governor's exercise of emergency powers during the recent hurricanes. This example relates to a subcomponent of the separation of powers doctrine: the legislature cannot effectively delegate its lawmaking authority to the executive branch by giving the executive a power to act with no constraints on the exercise of that power. The argument seems to be that a governor sure has broad powers to act in emergency situations, so why can't the legislature give a governor broad powers to act in cases like Terri's?

This answer can be complex, too, but the short of it should lie in the particularity of the respective laws. The governor's emergency powers stem largely from the State Emergency Management Act and, in particular, this section of that act. A careful review of the act shows not only that the Governor's specific powers are laid out, but that they are limited in numerous ways, including legislative oversight and a 60-day time limit. Were a governor to declare a state of emergency for no reason, or attempt to continue one without a basis, there would be oversight. By comparison, with Terri's Law, the language of the law allows the governor to order a feeding tube reinserted without requiring that there be any basis for the order, and the law allows the governor to rescind that order at any time with no requirement that there be a basis to do so. That's rather different from the governor's emergency powers.

It bears mention that there are other aspects to the Florida Supreme Court's decision that are not addressed by the examples offered by the above-mentioned columnists. For instance, none of the examples addresses the notion that "Terri's Law" was written to authorize gubernatorial intervention only for 15 days, and so only in Terri's case, or the related notion that "Terri's Law" was written not to change the law of Florida going forward but simply to change how the law applied in one particular, and already final, case. Both of those notions impacted the court's separation of powers analysis.

Having said all that, there's nothing wrong with a columnist having an opinion. Better information, however, usually makes for a more accurate opinion.

Proposed Amendment 4
Today's Sun-Sentinel has a story on who is actively opposing Proposed Constitutional Amendment No. 4.

You can read the story here.

By the way, when I talk about the proposed amendments over the next month, that's how I'm going to refer to them. "Proposed Constitutional Amendment No. x", with a link.

Mining For Trouble
Today's Miami Herald has this story on how those looking for trouble with this year's election may try to find it in the provisional voting system.

Sunday, October 10, 2004
Schiavo Mail
Back at work again today, and I just responded to another email regarding the burden of proof in the original trial on Terri Schiavo's wishes. Based on the readers comments, it seems reproducing part of the question and my answer may do some good.

Here's the pertinent part of the question:

One side says that because Michael brought the petition the Schindlers had to disprove Terri's wishes. It is my understanding from reading several other cases on end of life procedures that the petitioner for removal must provide the 'clear and convincing' evidence that the ward would not want want to be kept alive by extraordinary measures. In other words it's the opposite of criminal trial where the plantiff actually has to defend the statements he's making. Does Florida law work the opposite or am I just misunderstanding what the law says? If you could explain this better I think it would help greatly.
And my response:

It's somewhat awkward to speak of burdens in this context because it's not as if someone came into court as a plaintiff and had the burden of proving something to obtain relief from a judge or jury. It's difficult to conceptualize any result in this sort of case as "relief."

The trial judge's role was to determine what Terri would want to do in this situation. Under controlling Florida case law, there is a presumption that she would continue to receive life-prolonging measures, and that presumption can only be overcome by clear and convincing evidence to the contrary.

So, before Judge Greer could decide that Terri would not wish to continue receiving her feeding tube, he had to determine that clear and convincing evidence supported that result.

I think of it as a two-step process. First, decide if, based on all the evidence (and only the evidence) presented in court, would Terri choose to continue receiving the feeding tube or would she choose not to do so. If the answer is that she would not, then decide if the evidence supporting that result meets the standard of "clear and convincing" evidence. If it does, then the ultimate decision is to discontinue life-prolonging measures. If it does not, or if the answer to the first question was that she would continue to receive life-prolonging measures, then life-prolonging measures should be continued.

I find this view more accurate, and certainly less awkward, then talking about whether someone carried a "burden" of proving someone else's wishes.

Saturday, October 09, 2004
Provisional Balloting Case
I said yesterday that I'd comment on the briefs after reading them. I've read them.

It all seems to boil down to this: the AFL-CIO takes the position that the Florida Legislature lacks the constitutional authority to require people to vote at a particular place within the county where they reside, while the Secretary of State says that the constitution permits the Legislature to impose reasonable time, place, and manner restrictions on voting, and requiring you to vote (or cast a provisional ballot) in an assigned residence-based precinct is a permissible place restriction.

Not very complicated, huh?

I was discussing this case with a friend yesterday, and he raised an interesting point. In addition to the usual arguments advanced in favor of using precincts (such as that it prevents fraud by reducing the chances someone votes in more than one place), he pointed out that the ballots are not identical throughout most counties. Many elections also involve issues that are far more localized, including city issues and special district issues. If you can vote anywhere in the county, how would you obtain a ballot that would allow you vote on the matters that apply to where you live? Hmmm. I'd enjoy a good article that explores this in depth.

Meanwhile, though, the oral argument in this case in set for Wednesday at 9 a.m.

A Runner's High
There's something about getting in a run before coming to work that's just refreshing, even on a Saturday. This morning, I ran farther than I've ever run before. Over thirteen miles. Back in July, around my birthday, I decided that my years of jogging a little here and little there were not going to last forever, and that if I ever wanted to do a real run -- a marathon -- I needed to get myself in gear. So I joined a marathon training group that meets on Saturday mornings a few blocks from my condo. The goal is to run the Disney marathon in January. Ninety-two days left to train.

Now I run at night after work (notice the dearth of nighttime posts the last couple months?), and I do a long run on Saturday mornings, all along the gorgeous St. Pete waterfront. It's wonderful, and the group I run with is really great.

Today's just a spectacular day, and before I get back to work, I just thought I'd say so.

Friday, October 08, 2004
Provisional Ballot Case -- Briefs Are In, Out...
The briefs are in to the Florida Supreme Court in the provisional ballot case.

I have not yet had time to review the briefs, but when I do I'll post some thoughts. Meanwhile, here are the briefs:

the AFL-CIO's Initial Brief
the Secretary of State's Answer Brief
Cecilia Rush's Brief (intervenor aligned with the Secretary of State)
FSASE's "Initial Brief" (intervenor also aligned with the Secretary of State)

And for those of you interested in the continuing plight of would-be amici curiae, check out this order, which nixed this amicus curiae brief offered by the ACLU.

Provisional Ballot Case -- Back To The Top
Remember the provisional ballot case? The one where the AFL/CIO and others are challenging the provisional ballot system that Florida created in 2001? It's back in the spotlight.

The provisional ballot system permits registered voters to cast a provisional ballot when they show up to vote but are not on the list of eligible voters. The AFL/CIO is challenging the requirement that a provisional ballot be cast only in the voter's assigned precinct.

In other words, if you show up where you are supposed to vote and for some reason you're not on the list, you can vote anyway using a provisional ballot. Elections officials will later verify that you are indeed registered to vote and will count your ballot, so long as you voted in the right precinct. Apparently, the mistake has to be the elections officials', not yours. The Legislature put this system in place in 2001 in response to claims that, in the 2000 election, registered voters were showing up at the correct precinct to vote but were prevented from voting because their names were, for whatever reason, left off the lists of eligible voters.

The AFL/CIO and others contend the precinct restriction is an unconstitutional infringement on the right to vote. About six weeks ago, they filed this petition in the Florida Supreme Court. Rather quickly, in this order, the high court bumped the case down to the Leon County Circuit Court, where it was expeditiously heard by Judge Smith. He denied the petition, and the petitioners appealed to the First District.

Last Friday, the First District certified the case to the Florida Supreme Court for immediate resolution. You can read the certification order here. On Tuesday, the high court entered this order accepting jurisdiction and setting an expedited briefing schedule. The court ordered all sides to file their briefs by noon today and set oral argument in the case for next Wednesday.

I have not seen any of the briefing in this case so far, but I am very curious about the scope of the petitioners' arguments. We're all required to vote in our assigned precinct on election day. If requiring provisional ballots to be cast in your assigned precinct is unconstitutional, is requiring ordinary ballots to be cast in your assigned precinct invalid as well? This should be interesting.

Thursday, October 07, 2004
Schiavo Thoughts
I recently received an email asking for a definition of what it means for evidence to be "clear and convincing." The reader was kind enough to spare me the reason for the question, but I have a good guess: on message boards around the Internet, posters are continuing to debate whether Judge Greer's original decision regarding Terri's wishes was the correct one, and some folks are looking for a better feel of what it means for evidence to be "clear and convincing."

I'm glad to oblige.

First, though, a thought on the ongoing debate. I've seen some people take a hard position that testimony from witnesses regarding what Terri (or anyone else in Terri's position) once said is not evidence of her wishes. People taking this position seem to believe that the only acceptable evidence regarding the person's wishes should come directly from the hand or mouth of the incompetent person herself.

That's simply not correct. Evidence in the form of testimony regarding an incompetent person's oral statements is admissible to prove whether the person would choose to continue receiving life-prolonging treatment.

That's not to say such testimony must necessarily be believed: it's up to the trier of fact to determine the credibility of the testifying witness and how much weight that witness's testimony should receive.

Now, back to the question. In the 1994 case In re Davey, the Florida Supreme Court approved the following definition of the clear and convincing evidence standard:

There must be more than a "preponderance of the evidence," but the proof need not be "beyond and to the exclusion of a reasonable doubt." This intermediate level of proof entails both a qualitative and quantitative standard. The evidence must be credible; the memories of the witnesses must be clear and without confusion; and the sum total of the evidence must be of sufficient weight to convince the trier of fact without hesitancy.

Clear and convincing evidence requires that the evidence must be found to be credible; the facts to which the witnesses testify must be distinctly remembered; the testimony must be precise and explicit and the witnesses must be lacking in confusion as to the facts in issue. The evidence must be of such weight that it produces in the mind of the trier of fact a firm belief or conviction, without hesitancy, as to the truth of the allegations sought to be established.
Let the debates continue.

Blam, Onto The BlogBook
I'd like to thank the "fool" responsible for this.

And, not to disappoint, but when Debbie and I get a new dog, I intend at least to mention it.

Rush News
The Fourth District has denied Rush Limbaugh's petition for a writ of certiorari. You can read the three-judge panel's divided decision here.

Also, you can read Rush's certiorari petition here, you can read the State of Florida's opposition to the petition here, and you can read Rush's reply supporting his petition here.

The trial court's order that Rush asked the appellate court to quash is available here.

So what's the case about? It's about Rush's medical records and the state's seizure of those records in the course of investigating Rush for "doctor shopping," an offense involving the use of multiple doctors to issue multiple prescriptions at the same time. (Check out subsection (7)(a)8 of this statute.)

Acting on information suggesting a crime had been committed, the local state attorney in Palm Beach County followed a statutory procedure for obtaining a search warrant for Rush's records from a judge. The judge found probable cause to issue the warrant, which permitted the state to seize Rush's medical records. Attempting to give Rush a chance to object to the seizure, the state sealed the records before looking at them and sent Rush a letter informing him of the situation and offering him 10 days to object. Rush's attorneys then initiated a court proceeding (a petition for writ of certiorari), asking the court to force the state to return the records. The court refused, and Rush then sought a petition for writ of certiorari from the Fourth District. That's where things stood until yesterday.

The court's opinion divided Rush's arguments into two main points: whether the right to privacy under the Florida Constitution precluded the state from seizing the medical records, and whether Florida's statutes regarding the use of warrants permitted the seizure in this case. After a good bit of discussion, and boiling things down a bit, the court held that the privacy right does not limit the state's ability to seize materials in criminal investigations and that by offering Rush an opportunity to object, the state did even more than it needed to do to protect Rush's rights.

Judge May dissented in part. She drew a line between the state's ability to seize the documents, which she agreed the state could do by warrant, and the state's ability to utilize those documents, which she believed is affected by the right to privacy.

But don't stop there and just assume the majority and dissent are too deeply at odds here, at least with respect to the result. The majority denied Rush's petition but concluded the opinion with a comment that Rush could still ask the trial judge to review the records to ensure that the records produced are not more broad than what was called for by the previously-authorized warrants. Judge May, on the other hand, would have granted the petition and required the trial judge to evaluate the seized records to determine that they are actually relevant to the state's investigation.

Under either scenario, the state would be able to examine Rush's records to the extent they bear, yea or nea, on the potential crime of doctor-shopping. To be sure, Judge May's view is substantively different and would result in a far more detailed screening of the records before they could be examined by the state, but the majority and dissenting opinions should not be thought of as simply siding for or against Rush. The majority ruled against his arguments altogether. The dissent would have utilized a procedure that would give a court the opportunity to keep documents out of the state's hands if they were not actually relevant to the issue of doctor-shopping. Neither side agreed with Rush's ultimate point, which was to keep the records out of the state's hands altogether.

Schiavo News
Everyone following this case, and many who don't, surely know by now that Governor Bush has asked the Florida Supreme Court to rehear its decision declaring "Terri's Law" unconstitutional.

You can read the court's decision here, and you can read the Governor's motion for rehearing here.

Since my work has had me consumed for the last several days, and all the world's had an opportunity to comment on this filing, I'll try to focus on what the media reports might not have said.

First of all, for those who don't regularly follow appellate courts and appellate practice, I'll let you in on a not-so-secret truth: motions for rehearing almost never work. Here's why:

A motion for rehearing asks the court to rethink its decision. The rule of procedure that permits such motions in Florida's appellate courts provides that the motion "shall state with particularity the points of law or fact that, in the opinion of the movant, the court has overlooked or misapprehended in its decision, and shall not present issues not previously raised in the proceeding." In addition, case law makes clear that misapprehending or overlooking a point of law or fact does not mean that the movant merely disagrees with the court's conclusion on a point -- it means that the court has failed to appreciate how some controlling legal principle affects the case or failed to understand the case's facts.

Those are tough standards. The more attention a judge pays to the issues in a case, the less likely it is that anything, be it fact or law, was actually overlooked or misapprehended. Most of the time, and especially in a high profile case where the judges are surely paying great attention to the law and facts, the court does not overlook anything -- it just reaches a conclusion contrary to the views of the party seeking rehearing.

So, in a nutshell, that's why motions for rehearing rarely succeed. And none of that has anything to do with the Governor's motion in the Schiavo case. I'll look at that now.

The Governor's motion raises a series of points. Frankly, whether to do this is always a dilemma for appellate lawyers: when you've lost an appeal, you want to raise as many challenges to the decision as possible, in hopes one of them will work; at the same time, though, the more points you say the judges overlooked, the less credible your positions become. (A similar dilemma exists when deciding what to argue on appeal from a trial court's judgment.)

The Governor's first point argues that the court overlooked the basic principle that legislative acts are supposed to be presumed constitutional and should not be declared unconstitutional on their face unless the law under consideration always operates in an uncontitutional manner.

The Governor's second point argues that by reaching a decision as a matter of law and not allowing the Governor first to examine the facts in Terri's case, the court has deprived the Governor of his federal due process rights.

The Governor's third point asks the court to clarify how its decision will impact other situations where the Legislature has given the Governor powers without much specific guidance on how to use them.

The Governor's final point tells the court that its refusal to read Terri's Law in a manner that harmonizes it with Florida's existing statutes violates precedent and very much complicates the Legislature's job of adding new laws.

You may notice that, in the document's title and some of its points, the Governor asks for clarification of the court's ruling. That's an appropriate request for a party to make, and it's one that can be made by the winner or the loser. Typically, though, motions for clarification ask the court to clarify how the law applied to the case before the court or how the parties are supposed to proceed going forward. The requests for clarification in the Governor's motion are a bit different. They seem to ask the court to clarify the law to make it clear how future cases might be decided.

Will any of these arguments work? I'll let folks take their own guesses at this point. Keep in mind that, for the motion to succeed, four of the seven justices would have to decide they've overlooked something material to the case and that the result should have been different.

I will also offer a thought on what's going on. I think the odds of the Governor attempting to appeal this case to the U.S. Supreme Court appear to be fairly high. The Governor's discussion of his federal due process rights seems very much out of place if that discussion is not meant to firm up an argument for the U.S. Supreme Court that the Florida court has trampled on his federal constitutional rights. Or maybe the Governor is just doing his best to keep his options open in that regard.

I will offer a few brief thoughts on how a response to a motion for rehearing typically looks. In nearly every case, a response opposing a motion for rehearing begins and ends with a simple point: there's nothing new here, as the court's already considered all the issues raised in the motion and hasn't overlooked any of the case's important facts. Those points are sometimes elaborated upon through discussion that attempts to point out how the matters being argued on rehearing were raised in the parties' briefs, discussed at the oral argument and, finally, resolved in the court's decision.

It's often tempting for the opponent of the motion to go on at length about these points, just as it's tempting for the movant to go on at length about how the court supposedly overlooked so many things in its decision. Lawyers. Sometimes they just can't stop talking. Like this post. Okay, I'll stop...

Wednesday, October 06, 2004
What a Pause!
That brief is finally done. It's not bad, either, if I do say so myself. (It's also a pro bono brief for a criminal defendant. My second such brief in the last month. Just doing my part...)

I'll be back to posting later tonight. There is an awful lot to talk about. Schiavo. Rush. Really neat cases.

Monday, October 04, 2004
Abstract Pause
Thanks for stopping by.

Many thanks to those who emailed me over the weekend. I will respond as soon as possible. For much of today, though, I must continue to do what I've been doing all weekend: trying to wrap up an appellate brief.

Friday, October 01, 2004
Schiavo News
Today's St. Pete Times has this update on yesterday's hearing before Judge Greer. In short, a decision on the legal sufficiency of the Schindlers' most recent motion to vacate is expected in the coming weeks. For more on the motion, check out this prior post.

Supreme Court: Single Subject Requirement
Yesterday, the Florida Supreme Court issued its latest opinion attempting to explain how the Florida Constitution's single subject requirement should be applied to a law. The case concerned 1999's "Three Strikes Law," and the issue was whether all of the law's sections were "properly connected" to the subject of sentencing. The district courts had split over whether two provisions were sufficiently related to that subject: one involved clerks sending aliens' records to federal immigration officials, and the other increased the scope of the term "conveyance" as it is used to define the crime of burglary.

A 4-3 majority held that all of the bill's provisions, including the two just mentioned, were properly connected to the subject of sentencing. A careful read of the majority and dissenting opinions shows the court applied what can only be considered a very broad standard of "properly connected."

The majority opinion is noteworthy for its thorough discussion of how the subject of a law is to be identified.

Fourth District: Dangerous Towel Rack?
An apartment resident falls and is injured when, exiting the shower, she leans on a bathroom towel rack and it gives way. She sues the landlord, alleging that the loose towel rack was a dangerous condition the landlord should have known of and corrected. The trial court dismissed the complaint as failing to state a claim. What do you think the Fourth District did? To find out, look here.

Jury Instructions -- Federal v. State?
Here's an interesting situation involving potential tension between state and federal criminal law. In this Florida case, a criminal defendant requested a jury instruction stating that "the testimony of an addict is to be scrutinized with great caution." The trial court denied the request. On appeal, the defendant argued that the Eleventh Circuit has a standard jury instruction along the lines of the requested instruction. The Third District affirmed, holding that the defendant's assertion "may be so" but the requested instruction was nonetheless an improper comment on the evidence and contrary to Florida law.

If you're interested, special instruction 1.3 of the Eleventh Circuit's Pattern Jury Instructions In Criminal Cases states, in part:

The testimony of some witnesses must be considered with more caution than the testimony of other witnesses. For example, a witness who was using addictive drugs during the time he or she testified about may have an impaired memory concerning the events that occurred during that time.... So, while a witness of that kind may be entirely truthful when testifying, you should consider that testimony with more caution than the testimony of other witnesses.

Hey, Legislature!
In this family law case, the Third District asked the Legislature to clarify how the arbitration provisions of section 44.104 and Chapter 682 interact. The court observed that the former section appears to govern existing disputes, rather than future disputes, but the court was concerned about conflicts between the two areas, such as where arbitration prohibited under section 44.104 is the subject of an arbitration agreement under chapter 682.

Third District: Multipliers
If you follow case law regarding the calculation of attorney's fees, then you may be interested in this case. The Third District reversed a multiplier of 3.8, holding no multiplier should have been used.

Fourth District: Ignorance Is No Excuse
Being a recent immigrant to America and supposedly unaware that gambling machines are generally illegal in Florida did not prevent the misrepresentation claim advanced in this case from being lost as a matter of law. The Fourth District held that a buyer could not reasonably rely on an alleged misrepresentation that a sale included illegal gambling machines.

Third District: Claims Files
For an interesting decision on how attorney-client privilege and work product protection bear on an insured's request for production of an insurer's claims file, check out this decision from the Third District.

Fourth District: Arbitration Agreements
Arbitration fans will be interested in this decision from the Fourth District, which showed how arbitration agreements unenforceable under Florida law may still be enforced in Florida under federal law.

Third District: Unauthorized Insurance
Ever wonder what sort of claim you might have if you purchase insurance from a company not authorized to sell insurance in Florida? This decision from the Third District offers some insight.

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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