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Monday, November 29, 2004
Matt is on TDA
Matt is still west of the Mississippi River, and he finds himself without internet access. Matt hopes to return Tuesday evening, and he will blog shortly after his return.

Still Thankful
Debbie and I are still out of town for the holiday weekend. I hope everyone had a wonderful time. We have. We'll be back tomorrow, and posting will resume then, probably late in the day. Thanks for stopping by.

Thursday, November 25, 2004
Happy Thanksgiving
Many thanks to those who've stopped by this site, and especially those who've corresponded with me about cases, stories, and issues in general. I sincerely appreciate your time and thoughts, and I wish everyone a very happy Thanksgiving.

Wednesday, November 24, 2004
Not Exactly Schiavo
I have been blogging about the Terri Schiavo case since I started this web log in mid-2003. I've tried to help communicate what has really happened in that case, legally speaking, and part of my motivation has been my frustration with the still-too-common myth that Terri's husband, Michael, simply decided that he wants Terri's feeding tube removed.

That's not so. Florida law is clear that each individual has a constitutional right to decide whether to continue receiving life-prolonging measures, and if a particular person is unable to make that decision, what decision that person would make must be determined by someone else. In the Schiavo case, someone else had to decide what decision Terri would make, and disagreement among Terri's family led to that decision being made by a judge based on the evidence presented in a trial. The judge did not determine what he thought Terri should do -- he determined what he thought Terri herself would do.

Today's news brings this related story from the Orlando Sentinel. Apparently, doctors for a man in an Orlando hospital agree he is terminally ill, cannot make decisions for himself, and is unlikely to recover. He is on a ventilator, a dialysis machine, and medications.

Many years ago, the man signed a living will expressing his desire not to have the dying process artificially prolonged and that he wanted treatment in such a case only to alleviate pain.

Now, the man's wife refuses to agree to withhold medical treatment, and the hospital and the wife found themselves in court over the matter. The wife contends her husband is alert and responsive.

Yesterday, Judge Kirkwood of the Ninth Circuit in Orlando rejected the wife's arguments and ruled that the living will applies and must be honored here by the hospital.

The story is sad, as all such stories are. But it does help point back to some lessons from the Schiavo case. The ultimate decision is the ward's, and where there is disagreement over what the ward would do under the circumstances, a court will step in and determine what those circumstances really are and what the ward would choose to do. Living wills are marvelous and critically important declarations of intent, and they certainly help matters, but they do not eliminate the possibility of disagreements and even litigation.

Streamlining Clemency
Today's Miami Herald has a very interesting report here.

Burt Reynolds News
The Burt Reynolds case has now caught my attention, partly because I don't understand what's going on. Today's Sun-Sentinel has this update, which indicates that Burt's Florida suit is an effort to stop former girlfriend Pamela Seals's palimony suit in California. Is he really asking a Florida court to enjoin a California lawsuit, or, I suppose more likely, to enjoin the ex-girlfriend from bringing a California lawsuit?

Very interesting if that is the case. Maybe it is. Or maybe not. I had that maybe-it's-just-me feeling while reading the story until I got to the line about "criminal justice." (Look for it.) Something's confusing here.

Rush News
Yesterday, Rush Limbaugh filed a notice of appeal in the Florida Supreme Court, seeking to overturn this decision from the Fourth District.

For more on the case and what the Fourth District decided, check out this prior post and this certification order. The notice of appeal is available here.

Keep in mind that the supreme court need not accept this case -- the Fourth District certified a question of great public importance, but the high court has discretion in deciding whether to resolve that question. As for when the court will make that decision, there is no way to know. Extraordinarily time sensitive cases are, appropriately, handled very quickly. More ordinary cases like this one usually do not get the green or red light for months.

First District: Wal-Mart Class
Yesterday, the First District decided an interlocutory appeal in a class action involving Wal-Mart. The plaintiffs sued on behalf of all current and former hourly Wal-Mart employees in Florida, alleging Wal-Mart forced its employees to work off the clock and without promised breaks. The trial court denied the plaintiffs' motion to certify.

On appeal, the First District held that the trial court incorrectly denied certification based on the class members' individualized damages claims, but the denial was nonetheless affirmed because the class definition was overbroad. Not every employee is alleged to have received the complained-of treatment. You can read the decision here.

Sounds like, on remand, some amendments to the complaint are in order and that certification will follow.

Tuesday, November 23, 2004
Court Closed
As of this week, the federal court facility in downtown West Palm Beach is closed. Due to mold. The Palm Beach Post has details in this story.

Not Moving To Recuse
Today's Miami Herald has this story about Seventeenth (Broward County) Circuit Judge Marc Gold, whose impartiality is being publicly questioned by local prosecutors. Apparently, the judge's wife is an attorney in a case accusing the Broward County Sheriff's Office of misconduct, and while prosecutors feel this is a problem, they have not actually asked Judge Gold to recuse himself from any case.

Big Payday
The numbers appear to be in for the attorneys who successfully brought a class action suit against two Menorah Gardens cemetaries, the case that gained much attention around this time last year. Bottom line: $25.8 million for the lawyers. Read about it here in today's Sun-Sentinel.

Imagine More Of This
A kind reader sent me a link to this story in last week's Sun-Sentinel. The story describes how Broward County Sheriff's Office detectives are leaving laptops and other valuables for the taking in terminals at the Ft. Lauderdale airport, and then catching anyone who tries to steal them.

There may be nothing unconstitutional about that practice, but it does make me wonder what things would be like at shopping centers, on streets, wherever, if such tactics were more prevalent.

Monday, November 22, 2004
Florida Supreme Court: Insurers' Bad Faith
On Thursday, the Florida Supreme Court released this decision, where a 4-3 majority upheld a jury's finding an insurer failed to settle a claim through bad faith. The case deserves some attention.

To condense the facts: A woman died and her minor child was injured in a crash involving the insured's vehicle. Available insurance totaled $20,000, which the woman's husband demanded the insurer pay within 30 days. A week after the demand was made, the insurer orally agreed to make the payments. The insurer also agreed to aid the husband in becoming personal representative for the deceased wife's estate and getting court approval for the minor's settlement. The insurer's attorney then confirmed its intent to pay in a letter to the husband, but an erroneous zip code caused the letter's delivery to take nearly a month. In the meantime, the husband "revoked" the offer based on nonpayment within the demanded time period. The husband then sued the insured, recovering $1.8 million in damages, and then sued the insurer for bad faith failure to settle. A jury found bad faith, requiring the insurer to pay the full judgment against the insured.

The Second District reversed on the basis that the husband was not legally authorized to accept a settlement and thus, as a matter of law, there could have been no bad faith on the insurer's part. This holding created a conflict in the districts, which ultimately landed the case at the Florida Supreme Court. The high court reversed and reinstated the jury's verdict.

None of the justices appeared troubled with the conflict issue: the offer was valid and bad faith was not precluded. The justices divided, though, over whether the case's facts could permit a finding of bad faith.

The majority focused on the insurer's failure to meet the offer's deadlines and what the insurer could have done to communicate its acceptance better and make the payments on time. Ultimately, the majority upheld the verdict because a jury could reasonably have found the insurer could and should have settled in the allowed time. The majority repeatedly emphasized that it was making no new law here and that Florida's bad faith standard remained as it has been: focused on whether the insurer acted in the best interests of its insured.

Justice Cantero dissented and was joined by Justices Wells and Bell. Justice Cantero argued the offer was accepted and that the husband's deadlines were arbitrary. He concluded that the facts of the case might demonstrate mistakes by the insurer, but not bad faith.

Justice Wells penned a separate dissent that discussed how bad faith scenarios are being manufactured against insurers to gain "coverage" that does not exist. He further observed that the results are negatively affecting the insurance industry and, ultimately, Florida's insureds, because everyone's premiums must eventually be raised to allow, as in this case, a $20,000 policy to pay out on a $1.8 million claim. Justice Wells concluded that legislation appears necessary to solve these problems. Notably, the majority criticized Justice Wells's views as lacking empirical support.

This is a rare case because, in my view, everyone's right.

An unspoken truth that plainly emerges from the opinions in this case is that the claim of bad faith against an insurer may be the most inaptly named claim in the legal lexicon. Whether you agree with the majority or the dissents here, it is obvious that "bad faith" claims have no necessary connection to whether an insurer actually acted in bad faith.

Florida's standard jury instruction in this regard appears to have been accepted as the state's substantive law in third-party cases such as the one here. Under that instruction, the standard for bad faith conduct is this:

An insurance company acts in bad faith in failing to settle a claim against its insured within its policy limits when, under all of the circumstances, it could and should have done so, had it acted fairly and honestly towards its insured and with due regard for his interests.
This standard seems to ask the jury to determine merely whether it would have been reasonable to settle the claim -- in this case, to comply with the plaintiff's settlement terms and deadlines. Arguably, this is a lower standard than a negligence standard. In the classic negligence case, the factfinder is told that liability can be found only if the defendant acted unreasonably, by breaching a duty to act reasonably. Here, by comparison, the factfinder is not asked to find that what the insurer did failed to meet some standard. The factfinder is simply asked whether it would have been reasonable for the defendant to do the thing the plaintiff says should have been done, such as settle for a certain amount in a compressed time period. I suggest that the difference is material. Of course, even if that's not the case and the bad faith standard is the same as a negligence standard, the claim still has nothing do with whether the insurer actually acted in bad faith.

So, looking back at the opinions in this case, I read the majority's decision as holding that, applying Florida's common law standard for bad faith in third party cases, the jury had evidence in this case to find a reasonable insurer could have met the plaintiff's demands. Justice Cantero's dissent argues otherwise, but he seems to be searching for conduct that bears some semblance of true bad faith, and no such conduct appeared here. Justice Wells, on the other hand, points out that the system is in need of repair and that, given the majority's unwillingness to revisit this area of court-made law, a legislative solution seems necessary.

They're all right.

Supreme Court: Curfews Unconstitutional
Last week, in this divided decision, the Florida Supreme Court declared curfews adopted by Tampa and Pinellas Park to be unconstitutional. The curfews applied only to minors during late hours of the night. A four-justice majority held that the ordinances violated the minors' federal freedom of movement rights and the minors' privacy rights under the Florida Constitution. The court examined the ordinances under a strict scrutiny analysis, and the court held that while cities have compelling interests in protecting juveniles from victimization and reducing juvenile crime, the ordinances here did not advance these interests through the least restrictive means.

Justice Cantero, joined by Justices Wells and Bell, dissented. Justice Cantero concluded that rational basis scrutiny should be applied to the ordinances but, under any level of analysis, the ordinances are constitutional.

The case has three noteworthy aspects that I wish to point out.

First, as Justice Cantero explained, the cities proceeded at the trial level as if only rational basis scrutiny applied, which arguably led the cities to present far different proofs than they would have presented had they believed strict scrutiny applied. Yet the appellate courts have examined the evidence under the strict scrutiny standard, without permitting any further evidence to be presented. The lesson for constitutional litigators appears to be that, except perhaps where the law firmly holds scrict scrutiny inapplicable, proofs to meet that high standard should generally be attempted in a constitutional challenge. Just in case.

Second, constitutional buffs will enjoy pondering exactly how Florida's constitutional right of privacy played a role here. The majority repeatedly spoke of the ordinances at issue as infringing the privacy right, but, as Justice Cantero pointed out, the majority never articulated precisely how the ordinances trigger that right. The right of privacy would at least seem to cover things that are, well, a bit more "private" than being present on the street or sidewalk at certain times of day or night -- the matters at issue in the ordinances challenged in this case. The majority's willingness to find a privacy right violation without explaining how the privacy right actually applies here is curious and may make you wonder where the court could head with the privacy right in future cases.

Finally, I point out a position taken by the dissent. While the majority held otherwise, the dissent opined that the cities' compelling interests -- protecting juveniles from victimization and reducing juvenile crime -- were furthered by the least intrusive means through the imposition of criminal penalties, rather than civil penalties, on the very persons sought to be protected. In other words, in the dissent's view, arresting juveniles and charging them with crimes are among the least intrusive ways of protecting juveniles from crime and victimization. That strikes me as a departure from existing case law regarding strict scrutiny analysis.

Fifth District: Privilege Logs
Many litigators who represent corporate or institutional clients will applaud the Fifth District for its opinion in this case, which held that one does not waive any applicable privilege by merely failing to produce a privilege log at the time the party is required to respond to document production requests. The court further held that if the party tenders a log a reasonable time before a hearing is held on any motion to compel production, the trial court will be able to examine the log and rule on its merits.

This decision is realistic and a good step toward injecting some sense into how privilege logs are handled. Depending on the circumstances of the case, it can be impossible to complete a privilege log in the 30-day response period following a request for production. Indeed, sometimes many months are necessary to create an accurate log that neither includes nonprivileged material nor waives the protections applicable to privileged material, particularly in the corporate context.

I liken the hasty assembly of a privilege log to requiring a plaintiff to answer contention interrogatories in a 30-day period at the outset of a case -- a bad idea that will likely not lead to a just result.

Great win, Celene.

Questions, questions
The Fourth District has denied rehearing of its decision in the Rush Limbaugh litigation but has certified the following to the Florida Supreme Court as a question of great public importance:

Do §§ 395.3025(4) and 456.057(5)(a) bar the State from obtaining a search warrant to seize and inspect a patient's medical records without providing the patient notice and a prior hearing to oppose the seizure and inspection?
The case now has a clear path to the state supreme court.

You can read the certification order here. Also, for more on what this case is about, check out this prior post.

Second and Third Districts: Blakely
Those following the nationwide wake of Blakely v. Washington may be interested that the Second and Third Districts have now joined the chorus caroling that Blakely is not retroactive. ('Tis the season...) Their respective decisions can be found here and here.

Recall from this post that the Fourth and Fifth Districts reached the same conclusion last month.

Questions, questions
If a party fails to respond to a request for an admission on a purely legal issue, is the matter deemed admitted? No, said the Fifth District in this case.

The court also held that Florida's foreseeability standard must be applied when determining whether the owner of private, non-commercial land owes a duty of care to a motorist on a public roadway whose view of the roadway is obscured by foliage on the land. On this second issue, the court also certified the following to the Florida Supreme Court as a question of great public importance:
Judge Griffin offered a very interesting partial dissent, arguing that the landowner owed no duty as a matter of law.

I'm looking forward to the high court's resolution here.

First District: Unconstitutional Hearsay, Conflict
This case reminded me of tackling a law school exam question. It's a criminal case involving the admissibility of hearsay. The First District reversed the judgment and remanded for a new trial after concluding the statement at issue was hearsay, but it fit within the excited utterance exception, but that exception's application under the facts of the case violated the defendant's Sixth Amendment confrontation right.

The fun will not stop here. The court certified that its decision on the confrontation issue conflicts with this decision issued earlier this year by the Fifth District, so the state supreme court will get a chance to address these matters, too.

Fourth District: Municipal Authority
Here is a rare case involving interpretation of a city's charter and, specifically, the city's ability to convey land. The Fourth District agreed with the city's interpretation that it could avoid a referendum requirement by redesignating the property at issue.

Fourth District: A Call To Amend Rule 1.420
The facts of this case are a bit strange, and the result more so. A plaintiff had a pending whistleblower's suit pending against his employer when the employer allegedly violated the plaintiff's rights under the Florida Civil Rights Act, and so the plaintiff amended his suit to add a FCRA claim.

At trial, the trial court directed a verdict against the plaintiff on the FCRA claim, at which point the plaintiff attempted to voluntarily dismiss that claim. The trial judge rejected the dismissal effort and entered judgment on the claim in the employer's favor. On appeal, the Fourth District decided that the directed verdict was properly entered but that the plaintiff should have been permitted to dismiss the claim. The court reasoned that while Rule 1.420 gives plaintiffs an absolute right to voluntarily dismiss only an entire action, the plaintiff had effectively combined two separate actions in this case and should have been permitted to dismiss only the second one. The court thus reversed the final judgment against the plaintiff on the FCRA claim and expressly stated that the res judicata effect of the court's opinion on the directed verdict issue was not being decided.

In a footnote, the court also suggested that Rule 1.420 be changed to avoid this result.

First District: Rule 1.525
This decision from the First District agrees with a number of other decisions that the 30-day window for serving an attorney's fees motion under Rule 1.525 may be extended based on excusable neglect.

Fifth District: Certiorari
Think quick, appellate lawyers: is an order denying a motion to consolidate reviewable by certiorari? The answer is here.

First District: Obscenity and Minors
This case from the First District is a must-read for those who enjoy watching how our classic notions of free speech and due process interact with our modern efforts to prevent minors from being corrupted through electronic technologies.

The court unanimously upheld a set of constitutional challenges to this statute dealing with computer pornography.

But the panel passionately split over the constitutionality of this statute, which prohibits transmitting material "harmful to minors" through "electronic mail" to a person known or believed to be a minor. The majority held the statute constitutional, but Judge Browning vigorously dissented, finding it overbroad, vague, and not narrowly tailored to serve the statute's compelling interests. Much of Judge Browning's argument stems from the dual notions that what is harmful to minors varies with age and that targetting "electronic mail" captures too broad a range of indirect or multiple recipient communications.

Our supreme court will tackle these issues next. I'm looking forward to it.

Fourth District: Fundamentally Unsupportable, Inconsistent Verdicts
Products liability fans, and anyone interested in inconsistent verdict cases, should check out this decision from the Fourth District. The court reversed a jury verdict against an auto manufacturer after the jury specifically found negligence but no defect. The defendant had not objected to the verdict as inconsistent, but the court found that an exception to the preservation rule exists where, as here, a verdict is fundamentally unsupportable. The only theory the plaintiff pursued at trial was for defective design.

Assuming this exception comes into play whenever a jury interrogatory establishes a fact that undermines a plaintiff's theory of recovery (and that may be too big an assumption), it would seem ideal for the defendant to identify such situations at trial and not object to such a verdict as inconsistent. After all, if an objection is made and the judge sends the jury back to correct the inconsistency, especially after the jury has set damages figures, it would seem likely that the jury will correct the error in the plaintiff's favor. Then again, if the verdict is inconsistent but the "fundamentally unsupportable" exception does not apply, then the inconsistency will be deemed waived and the verdict may be enforced. Very interesting, and all the more reason to have an appellate lawyer around at trial.

Fourth District: Employment Litigation Instructions
Employment litigators will be interested in this decision, where the Fourth District reversed a jury verdict based on the trial court's failure to provide requested instructions on after-acquired evidence and the same actor inference.

First District: Rescission
Real property and remedies fans may be interested in this decision from the First District, which held that a transfer of property could not be rescinded because, since the transfer, the IRS had placed a lien on the property and the IRS had not been made a party to the rescission action.

Second District: Frye Reversal
The Second District's decision in this case might be summarized in the following way: if as a trial judge you feel a party's novel scientific evidence seems "pretty hokey," then excluding the evidence might be the way to go.

The case involved an automobile manufacturer and a products claim. Nice win, Jeff.

Fourth District: Directed Verdicts in Bench Trials, Minority View
If the trial judge in a bench trial believes the plaintiff has not carried the applicable burden, is it appropriate, even though issues of fact technically exist, for the judge to grant a directed verdict or involuntary dismissal? No, said the Fourth District in this casej. The court acknowledged that Florida is in the extreme minority regarding this view.

A number of network- and Blogger-related problems kept me from posting yesterday. They appear to be solved, or at least worked around. Assuming this post works, many more to follow...

Saturday, November 20, 2004
What a win. Hunter's gotta be happy.

I suppose I can now bury his Q&A with posts. In the morning, though...

Friday, November 19, 2004
Friday Florida Law Trivia Answer
Here's the answer to the question I asked this morning.

Setting aside for a moment elections for legislative seats, if there is a tie vote in the general election, then according to this statute, all candidates who received the same number of votes "shall draw lots" to determine who wins. This is accomplished by flipping a coin, drawing straws, drawing playing cards, etc.

It's questionable whether that statute applies if there is a tie vote for a member of the Legislature. Under Article III, section 2 of the Florida Constitution, each house of the Legislature "shall be the sole judge of the qualifications, elections, and returns of its members[.]" This statute recognizes that provision and indicates that the contest of an election by a losing candidate may only occur in the house to which the candidate seeks membership. Conceivably then, the specific house at issue would seem to have the constitutional authority to determine who wins the seat in the event of a tie.

I hope that you have a good and safe weekend. Go Gators!

Feeling Trivial
I have written two large posts concerning yesterday's curfew and bad faith decisions, but I've just been so giddy about Hunter's return to weekly trivia that I haven't wanted to bump his question down with lengthy substantive talk. I'll just let my thoughts on the two biggies from yesterday be until tomorrow and give folks a chance to spot the question and answer.

Friday Florida Law Trivia!
Ok, ok, I've been dilatory in posting Friday's trivia questions. I wish that I had a good reason other than work, but alas, I do not. Anyway, I thought I would I give you an easy question today to gear you back up for more arcane questions in the future. The question is like an Election Redux, so here goes.

Excluding the election for President, what happens if two or more candidates receive the highest but same number of votes in a general election? Who is elected in this situation?

The answer will be posted this afternoon.

A bit of a pause now before posting on yesterday's curfew and bad faith cases...

And by the way, where's Hunter? I think he owes us a Friday Florida Law Trivia question, and he's got to be caught up with work by now.

Fourth District: Negligent Entrustment
Of a shopping cart? It's tempting to give a shout out to Overlawyered.com about the theory alleged (or the one that may soon be alleged) in this case.

Fifth District: Certiorari Pointer
Just a reminder here from the Fifth District: under this 2004 decision by the Florida Supreme Court, a petition for certiorari cannot be predicated on court minutes, even if those minutes are signed by the trial judge and filed.

Fourth District: Appropriate Times To Swear
Trial judges may be interested in this decision from the Fourth District. The court reversed a judgment and ordered a new trial because the plaintiff had been denied the opportunity to backstrike a main panel juror after the parties had selected the main panel and the alternates. The district court concluded that trial courts cannot prevent belated backstrikes so long as the jurors have not been sworn, and that to avoid such situations, trial courts can swear the main panel prior to selecting the alternates. The court observed that, to its knowledge, swearing the main panel prior to choosing alternates is the general practice.

Conceptually, that makes sense, but it differs from my experience. Interesting. I need to learn more about this.

Fourth District: Saving Class Actions
The plaintiff in this class action is a partner in a law firm who, amazingly, hired his firm to represent him. After the firm incurred hundreds of thousands of dollars in fees (it was to be paid hourly?) during two years of litigation, the plaintiff changed counsel. The trial court entered an order certifying the plaintiff as representative of a class, and the defendant took an interlocutory appeal.

On appeal, the defendant argued that the plaintiff's individual interest in the fees owed to his firm precluded finding him to be an adequate class representative. The Fourth District agreed but held the conflict cured when, during the appeal's oral arguments, the plaintiff expressly waived his right to any fees for legal work performed by himself or his firm.

Fourth District: But Killing Contracts
Does Florida's Deceptive and Unfair Trade Practices Act encompass claims that really amount to breach of a commercial contract? Check out the Fourth District's decision in this case for the divided panel's views.

And for those of you noticing the illogic of my tying two post titles together in a sequence posted, chronologically speaking, in the reverse order, I congratulate you on your astuteness.

Fourth District: Unconscionable Arbitration Agreements
In its latest decision affirming a decision that an arbitration agreement is unconscionable, the Fourth District addressed an agreement to purchase a car. The court held the agreement (or at least the arbitration language in the agreement -- there's no discussion about this) substantively unconscionable because it required the purchaser to arbitrate all of her disputes with the dealership but did not require the dealership to arbitrate all of its disputes with the purchaser.

The court also found procedural unconscionability based on the following: the arbitration language was included on the back of a form the purchaser signed, but the purchaser only signed the form's front; the language referring to language being included on the back was in small type; the purchaser denied ever seeing the back of the page; and the dealership's sales manager and salesperson were unaware the arbitration provision existed and had a practice of not pointing out the language on the back of the page.

You can read the decision here. I consider the finding of substantive unconscionability to be significant.

Fourth District: Fraud Damages
Fraud is a fascinating claim in many ways, not the least of which is how it can seem to encompass conflicting notions of tort and contract law. A good example of a court clearing up some confusion in this regard can be seen in this case, where the Fourth District reversed a fraud judgment on the basis that the damages the plaintiff proved were not fraud damages at all. Good stuff.

Fourth District: TBE Property
If property held through a tenancy by the entireties is sold and the proceeds are deposited into an attorney's trust account, do the funds retain the property's former character, preventing a creditor of one of the former owners from garnishing the account? The Fourth District answered this question in the affirmative. Read about it in this decision.

Fifth District: Habitual Offenders
If a defendant is placed on probation for an offense and not sentenced until he later commits another offense and is also sentenced for that offense as well, are the two sentences sequential for purposes of sentencing as a habitual felony offender? The Fourth District answered this question in the negative earlier this year, but in this case, the Fifth District found that view to be "hyper-technical and illogical." Conflict certified.

Fifth District: Recalling Mandates
Can a district court recall a mandate issued during a prior term of court? Most appellate lawyers will answer no, and correctly so, but there is an exception or two to the rule, as seen by this decision from the Fifth District.

Fourth District: Race-Neutral Strikes
This decision from the Fourth District shows one of the few areas where a trial court's ruling regarding voir dire will be reversed unless it has certain record support. The subject is a challenge to a strike as being racially motivated, and the situation is where the striking party defends the move based on nonverbal behavior. The behavior must have been admittedly observed by the trial judge or otherwise have record support, or granting the strike will be reversible error.

Fourth District: Avoiding Limitations
For a good review of the distinctions between the statutory tolling doctrines for limitations periods and their judicially created counterpart, estoppel to assert a limitations period, check out this decision from the Fourth District. Nice win, Louise.

Fourth District: Prenuptial Agreements
Family law folks may be interested in this decision, in which the Fourth District affirmed enforcement of what the court called a "patently unreasonable" but fairly entered prenuptial agreement.

Still Pondering...
I still haven't figured out what to do with all of my broken Florida Supreme Court links, but I suppose I should get back to the substantive posts I intended to put up last night. I'm going to catch up on case law today. Much of it in the next couple of hours.

Thursday, November 18, 2004
Florida Supreme Court: Unlinked
Historically, the Florida Supreme Court and the Florida state courts system have shared an Internet domain: www.flcourts.org.

No more. Starting this afternoon, the high court broke away from the state courts system, moving its data to a new domain: www.floridasupremecourt.org.

The new site looks good. It appears based on the layout used for the DCA docket search pages. I've also seen a preview of the coming electronic filing page, and it seemed to share the same look.

The new look and location are great for the court. But they've left me with a problem: all of the court's pages on the old domain now load a page announcing the split from the state courts system, so links to the old pages don't work at all. At all. Abstract Appeal probably has 1000 links to various Florida Supreme Court justices, opinions, orders, etc. Right now, none of them works, except the curfew decision in the prior post. I changed that one.

But changing them all seems, well, unthinkable. I can easily recode the links in the left column, but I use Blogger for posting, and Blogger is bad at letting you edit recent posts. It's terrible at letting you edit old posts. Almost impossible.

What to do? I dunno. I'm pondering things at the moment over a certain Irish stout. Inspiration's sure to follow. That and reading today's curfew and bad faith cases...

Curfew Laws Unconstitutional
Today, the Florida Supreme Court held that juvenile curfew ordinances adopted by Tampa and Pinellas Park are unconstitutional.

The court split 4-3. You can read the opinions here. I'll have more on the case, and some other interesting items, later today.

Wednesday, November 17, 2004
Privacy Concerns
The Florida Supreme Court's Committee on Privacy & Court Records is holding public hearings this week in Tallahassee, and today's Tallahassee Democrat has this interesting story on the committee and the issue of electronically open court records.

Football Suit
When officials at a high school football game thought a player collapsed after a neck injury, they let him be until paramedics arrived. After the 15-year-old died due to heart problems, his family sued, saying officials should have intervened. Read about it in this story in today's Sun-Sentinel.

Civil Session?
Mark Lane, of the quite fun flablog, seems downright disappointed that the upcoming legislative session may appear, well, civil. Mark has this story in today's News-Journal.

A Note To The Appellate Judges
If any Florida appellate judge happens across this blog, I have a thought to share:

Two weeks ago, election time, a number of people were actively interested in your decisions and were using the Internet to research them.

It was a complete surprise to me at first, and it took me a few days to understand what was going on. Let me back up and explain.

When someone accesses Abstract Appeal from a link on another web page, I receive what the web publishing crowd calls referral information. Basically, I can see the Internet address for the site that referred the person here. When someone arrives at this site by way of a search engine, I see the search itself, since the text of the search is (usually) embedded in the referring address.

To give an example, if you go to Google and run a search for "conigliaro," you will get one or more links that lead to this site. If you click on one of those links, I get referral information that looks like this:


For Internet marketing folks, such information is pure gold. For me, it is just something to check out once in a while.

Getting back to the point, about a week before the election, I started seeing referral links that looked like this:


At first I thought someone must have a case before Judge Canady. But then there were similar searches involving Judge Torpy, Judge Sharp, Judge Wallace, and (the wise clerk-chooser) Judge Griffin. Plus Justice Bell and Justice Cantero, too. And others. Eventually I caught on and realized these were all people who were up for merit retention this election, and that made me start paying attention to the details of the searches.

Some searches included some rather specific terms. The most popular? By far: "abortion." I do not know which way that works -- did the searchers support broad or narrow abortion rights? Either way, that was the hottest item. Other subject terms added to the searches included "constitutional decisions," "privacy," and my personal favorite, "bad decisions."

There were hundreds of these, and I am sure my site captured only a fraction of the searches being run.

What I took from all this is that a number of citizens out there are taking the time to utilize the Internet to help guide their merit retention votes. It does not appear, though, at least not at my unsophisticated glance, that this election's results were any different from the norm. Each judge up for merit retention seemed to garner the usual 65-75% favorable result. Still, I found these searches interesting and thought I would pass the information along.

By the way, if you would like to review the results of the merit retention votes, you can check out the supreme court justices' results here and the district court judges' results here.

Monday, November 15, 2004
Enforcement of Three Strikes Law Enjoined
Two weeks ago, Florida's voters approved 2004's Constitutional Amendment No. 8, which prohibits the state from licensing doctors who have been found to have committed three or more acts of medical malpractice.

This morning, Tallahassee area circuit judge Janet Ferris entered an injunction that prevents the new law from being implemented. There are numerous questions about how the law should operate, and perhaps legislation will be necessary to implement the law in proper fashion.

You can read about the injunction in this story from the Sun-Sentinel.

Attention Appellate Lawyers
Just another reminder here for Florida Bar members about the Appellate Practice Section's monthly lunchtime teleconference, which will be held tomorrow, November 16, from 12:10 p.m. to 1 p.m. The topic will be extensions of time, and we will have the honor of hearing from the following rather well informed folks on the subject:

Tom Hall, clerk of the Florida Supreme Court
Jon Wheeler, clerk of the First District
Jim Birkhold, clerk of the Second District
Mary Cay Blanks, clerk of the Third District
Marilyn Beuttenmuller, clerk of the Fourth District
Frank Habershaw, clerk of the Fifth District
Tom Kahn, clerk of the Eleventh Circuit

They will all speak on their respective courts' policies and practices regarding extensions of time, and if time permits they may take questions. Should be a good one.

Unfortunately, it seems the section's web page has not been updated to reflect tomorrow's topic, but it does give the call-in number for the program, and if you click on the forms link on that page, you will find information about costs. Remember, preregistration is not necessary. Just call in.

Emergency Rule Challenge Over
This probably is no surprise to anyone, but last week, the Florida Supreme Court declined to hear the Florida Democratic Party's appeal in the case challenging the Secretary of State's emergency election recount rule.

I'm sure it helped that there was no recount.

You can read the order declining to exercise jurisdiction here.

Slight Delay
Still finishing up that brief. I'll post a bit later this morning, before heading off to a hearing in Orlando.

Friday, November 12, 2004
Over the last two days, DRI held its annual Appellate Advocacy Seminar. This year's meeting was in New York.

At the beginning of the week, I couldn't make it. Then I could. Finally, I couldn't. I hope it went well. I have a few friends who went, and I look forward to hearing all about it.

For now, though, it may be Friday night, but I'm working on a brief.

First District: School Voucher Case, Version II
You may recall that, several months ago, the First District released its 2-1 decision in Bush v. Holmes, which held Florida's Opportunity Scholarship Program unlawful under Florida's constitution because the program permits public funds to be given to religious (as well as non-religious) private schools.

The court later granted rehearing en banc in the case, and today the en banc court released what looks like an 8-5 decision reaching the same result. The en banc decision is available here. It will make for a long read this weekend.

Med Mal Three Strikes Law
The ABA Journal has a very interesting story on Florida's new medical malpractice three strikes law, which voters overwhelmingly approved last week as a constitutional amendment. According to the story, there seems to be much agreement that the law will force doctors to settle cases rather than take them to trial, which in turn will increase the likelihood of frivolous lawsuits.

You can read the story here.

If you've visited the Florida Supreme Court for oral arguments, or watched them on video, you've most likely heard Marshal Wilson Barnes sound the Oyez when a court session begins. You can listen to it here:

A marvelous introduction, even if it does lead you to wonder if it should really say "all who appear on today's docket sheet draw near...."

Unfortunately, it appears from this job posting that Marshal Barnes is about to leave the court -- retiring, I presume. I am sure it will be a tough position to fill.

Something about the job listing troubles me. It doesn't mention the need for a booming voice that can bellow out the Oyez in grand fashion. Perhaps that should be the chief requirement...

Thursday, November 11, 2004
Supreme Court: Adoption
Yesterday, the Florida Supreme Court held that a child in the state's care may be adopted regardless of whether the Department of Children and Families approves the adoption. You can read the decision here.

Second District: Answering Your Traffic Questions
The defendant in this criminal case was driving down a street that ended in a T-shaped intersection, with a right lane clearly indicating that drivers must turn right and a left lane that simply forced drivers to turn left. There was no opposing traffic because there was no opposing lane. The defendant was in the left lane and, to no one's surprise, turned left, but he didn't use his signal light. A police officer pulled him over for not signaling and ultimately arrested him for marijuana offenses. The issue was whether the stop was lawful.

The Second District held the stop unlawful because, under this statute, a turn signal is required only where another vehicle will be affected by the turn. In this case, there was no opposing traffic and no one else was affected by the turn. The stop was therefore improper, and the law required the contraband suppressed.

Downtown St. Pete has several intersections comparable to the one described in this case, though the signage for some of them makes it clear which direction each lane must turn. Anyway, I have wondered for years about whether I'm required to signal at those intersections. I guess not.

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

The First District certified the same question just over a year ago, as longtime readers may recall from this post. A look at the supreme court's docket shows that while a notice to invoke the court's jurisdiction in that case was filed in early January of this year, the court has not yet decided whether it will hear the case. Perhaps the Third District's additional certification will prompt a decision, either letting the decisions stand or granting review.

By the way, both district courts answered the question in the affirmative.

Judge Altenbernd: Jimmy Ryce Concerns
Over the years, Chief Judge Altenbernd has used dicta or concurring opinions to offer some useful and much needed legal insights. Add his concurrence in this case to the list of contributions. (Check out this prior post for another example.)

The case concerned Florida's Jimmy Ryce Act -- the law that, in essence, permits persons previously convicted of violent sexual offenses to be "confined" if it can be proven they are likely to commit violent sexual offenses in the future.

Judge Altenbernd raised two concerns. And they're big ones.

First, he questioned -- where perhaps no one else has -- whether the psychological testimony being used in Jimmy Ryce proceedings is based on methodologies that are accepted in the relevant scientific community. Indeed, he questioned what that community really is, and, appropriately, seems to doubt it is no more than the persons who have been offering this testimony in litigation.

Second, Judge Altenbernd considered the problems presented by asking juries to rely on actuarial data to predict future deviant behavior -- data that, by its nature, carries rather extraordinary error rates. Consider this excerpt, in which Judge Altenbernd questioned the usefulness of actuarial data suggesting that a person such as the defendant in the case falls into a group with a 48.6% recidivism rate:

When a scientist incorrectly places a person into a group or category based on a scientific test, the scientist regards the error as a "false positive." In the context of Jimmy Ryce proceedings, a "false positive" places a person who will not commit a future act of sexual violence into a civil commitment facility for an indefinite period of long-term confinement. That facility looks very similar to a prison. Once confined, it is very difficult for a person to prove how he or she would have behaved, or may in the future behave in the outside world. As a parent of young children, I understand the temptation to involuntarily commit the 52 "false positives" under the [statistical analysis] in order to protect society from the other 48. As a judge sworn to uphold the constitutional rights of all citizens, I am not so convinced we should accept such a high error rate. Just as we would not allow fingerprint experts or DNA experts to testify if their identifications were wrong 52% of the time, I question the role of these tests and opinions in Jimmy Ryce proceedings.
Hopefully, attorneys, judges, and perhaps even the state legislature will analyze these thoughts, and address them.

Third District: Defrauding Attorneys
This decision from the Third District demonstrates an application of the curious tort claim that allows an attorney to sue someone for tortiously interfering with the attorney's contingency arrangement with a client.

Interestingly, in a footnote at the end of the case, the court also pointed out that a provision in an attorney/client agreement stating that the client will not settle without the attorney's prior written approval is contrary to the Rules of Professional Conduct and therefore unenforceable.

Questions, questions
In this case concerning attorney's fees in a divorce case, the Second District certified the following to the Florida Supreme Court as a question of great public importance:

The court actually certified this same question earlier last year, but that occurred before I started this web log, so I thought I'd post it now.

Second District: Certiorari and Separation of Powers
This decision from the Second District caught my eye because it covers two significant legal points in only three pages. The first point concerns appellate practice and answers the question of whether a trial court's order directing a nonparty to do something gives rise to certiorari jurisdiction. The second point addresses the judiciary's inability to force an executive branch agency to spend funds.

For what it's worth, that first point would seem to lend itself to an appellate certification exam question.

Questions, questions
Remember the lex loci contractus/snowbird case discussed in this prior post? Well, the Second District granted a motion for certification in the case and yesterday certified the following to the Florida Supreme Court as a question of great public importance:


Second District: Custody Conflict
Family law practitioners may be interested in this decision from the Second District, which certified conflict with this Fifth District decision over the standards applicable to modification of rotating custody arrangements.

Second District: Employee Analysis
This decision from the Second District is a worthwhile read because of its in-depth looks at the distinction between employees and independent contractors, and the rather remarkable concept of subemployees.

The decision, which reverses a summary judgment, ends by tactfully explaining to the appellee the basics of summary judgment proceedings. The appellee insisted, wrongly, that an appellant's mere argument for summary judgment in its favor estops the appellant from arguing error in granting summary judgment for the appellee.

Wednesday, November 10, 2004
Catching Up
As you may have noticed, I'm starting to catch up on my case law posts. I can't believe how fast the last couple of weeks flew. The good news is that I finished a number of briefs that just needed to be finished, and November began my firm's new year for billing purposes. All will be back to normal around here soon. We may even get Hunter back this Friday to resume the weekly Florida law trivia question.

Late Absentee Ballots Are... Late
A federal judge in South Florida has rejected an emergency effort by the ACLU to force elections officials to count certain late-returned absentee ballots. Today's Sun-Sentinel has the story here.

Proposed Constitutional Amendment for 2006?
You can guess the subject. Today's St. Pete Times has the story here.

First District: Limitation Periods for Internet Defamation
Let's say you publish something defamatory on an Internet site and people surfing the web view the material on an ongoing basis. Is each new hit on the site more akin to a book publisher republishing the defamatory material or a library checking out a previously published work to a patron?

Is it significant if the defamatory material was originally contained in a printed newsletter that was then published on the web site?

I will suggest that the answer partly depends on the question's context. In this case, the context was a statute of limitations defense. The plaintiff argued that each hit to the defendant's web site began a new two-year limitations period. The First District disagreed, likening the ongoing hits to a previously published book being checked out of a library. The court observed that this was a question of first impression in Florida and relied on out-of-state authorities that reached the same result.

By the way, the defendant in the case was FSU.

First District: Social Security Numbers
Can a petition for workers' compensation benefits be denied because the applicant fails to disclose his social security number? No, said the First District in this case, because requiring such a disclosure violates federal law.

First District: Excited Utterances
For a hard look at the law on the excited utterance hearsay exception, and a harder look at how the admission of such hearsay is reviewed on appeal, check out this decision from the First District.

First District: Expert Opinions, Certifiable Conflict?
Here is a decision from the First District offering something for trial lawyers and appellate lawyers.

Trial folks will be interested in the court's decision to reject an appellant's argument that the opposing expert improperly relied on hearsay consultations with other experts when formulating an opinion on whether the defendant met the relevant medical standard of care.

Appellate folks will be interested in the panel's opinion, and Judge Kahn's dissent, regarding whether a conflict in the reasoning behind two district court decisions is sufficient to certify conflict between the decisions themselves. Hmmm.

First District: Separation of Powers
This election case from the First District suggests a possible surge in challenges to statutes that give executive branch officials unbridled discretion. As did our high court in the Terri Schiavo saga, the district court held that a statute permitting the Secretary of State complete discretion in determining whether to accept a late withdrawal by an election candidate is an unconstitutional violation of Florida's separation of powers principles.

First District: Land Development Rights
Land use fans will be interested in this decision from the First District. The court, sitting en banc, receded from a prior decision and held that, where a development of regional impact has been previously approved by regional planners, the developer's vested rights in the project do not extend to non-regional-impact changes in the project that do not require additional regional review. Local government review and approval for the changes may be necessary.

Tuesday, November 09, 2004
Medical Malpractice Insurance Crisis?
If you are interested in whether rising malpractice insurance premium rates are (or are not) forcing doctors to leave Florida or reduce the medical services they offer, you will definitely want to check out this story in today's St. Pete Times.

Class Size Amendment Effects
Remember the school class-size constitutional amendment that Florida voters approved back in 2002? Today's Sun-Sentinel has this story on some of its unfortunate effects.

Vote No, Because This Really Passionate Ad Says So
I have to confess to really liking one aspect of the federal election reforms enacted a few years ago: being told who is paying for campaign-related ads. I even like the candidates telling us they approve of their messages. It can be redundant, but it is informative.

I understand that the federal law does not apply to local issues, and that a comparable law at the state level might be rather ineffective. (The closer you get to local level politics, the more likely you are to find a few chums with money getting together and calling themselves such meaningless names as "Citizens Who Support Causes So Worthwhile You'd Support Them Too.")

Along these lines, this story from today's Times-Union discusses who some of the major players were in the ad campaign against this year's Constitutional Amendment No. 4 -- the amendment to permit two South Florida counties to decide whether to allow slot machines in existing pari-mutuel facilities.

You remember the ads. Did you guess who the sponsors were?

Valuing The Right To Vote
We seem to put a price tag on everything else, right? Why not voting rights. This story in today's Sun-Sentinel describes a suit by would-be voters whose registrations ACORN allegedly mangled. According to the story, the lead attorney would like to recover $100,000 per person in punitive damages.

I'd just like to know what the underlying cause of action is. Hmmm.

Monday, November 08, 2004
Attention Appellate Lawyers
If you practice in the appellate courts and are a member of The Florida Bar, then I have a lunch event for you. It's the Appellate Practice Section's monthly lunchtime teleconference.

I have the pleasure of hosting this month's program, which will be held next Tuesday, November 16, from 12:10 p.m. to 1 p.m. The topic will be the ever-important one of extensions of time, and we will have the honor of hearing from the following rather well informed folks on the subject:

Tom Hall, clerk of the Florida Supreme Court
Jon Wheeler, clerk of the First District
Jim Birkhold, clerk of the Second District
Mary Cay Blanks, clerk of the Third District
Marilyn Beuttenmuller, clerk of the Fourth District
Frank Habershaw, clerk of the Fifth District

and, as a special guest from our local federal appellate court,

Tom Kahn, clerk of the Eleventh Circuit

They will all speak on their respective courts' policies and practices regarding extensions of time, and if time permits they may take questions. Should be a good one. Check out the section's web page for attendance information as the date gets closer.

Saturday, November 06, 2004
The Problem Of Issue Baiting
Something being said about Election Day has really caught my attention, and it has me more than a bit concerned.

It starts with the gay marriage bans that eleven states presented to their voters, and which voters in all eleven states approved. There appears to be growing opinion that these initiatives brought out conservative voters, and that those voters in turn pushed the Republican Party over the top in race after race.

That scares me. Why? Because politics is ultimately a form of marketing, and a longstanding marketing mantra is to go with what sells. That means we can expect more and more issues like gay marriage to percolate to the surface on future Election Days, as the parties attempt to lead their base support to the polls by offering them not only someone but something to support -- an issue that motivates them and stirs their passions. A sort of political call to arms. Issue baiting, I'll call it.

Some of you can already tell where I am headed. The Florida Constitution. It's what legal scholars refer to as our organic document, the defining instrument of our state government. It is also the only source of statewide law that Florida citizens can directly modify.

You see, Florida citizens have no ability to adopt anything that resembles a statute passed by the state legislature. No. In Florida, if a citizen wants to change the law and the legislature proves inhospitable, the only alternative is to go straight to the top -- the state constitution, the same document that establishes our three branches of government, and which those branches must obey. It can be amended by the state's electorate merely by gathering a certain number of signatures, crafting an accurate 75-or-fewer word summary to be placed on the ballot, and obtaining a simple majority's approval at the next statewide election. If approved, the change becomes part of Florida's foundational blueprint, beyond the reach of the state legislature or any municipality.

In recent years, Florida has seen the sanctity of its state constitution diminished by a wave of amendments proposed by special interest groups. Many proposals have made their way onto the ballot, where they succeeded if their summaries made them sound like good ideas. Predictably, that was the case with most of them. The few proposals that somehow managed to sound unappealing failed.

This year marked what may be the start of two new trends. First, we had the deplorable professional war waged by the state's doctors and its plaintiffs' lawyers. The doctors proposed an amendment that would limit plaintiffs' lawyers' fees in medical malpractice cases. The plaintiffs' lawyers proposed amendments that would make public previously confidential documents regarding adverse medical incidents and would prohibit doctors from practicing if they have been found liable for malpractice three times. All three proposals passed, making them the immutable law of our land unless the constitution is amended again or some federal law supercedes them.

Such tit-for-tat battles staged on the constitution's face should disturb anyone, but an even more disturbing trend may have also arrived -- the one I mentioned at the start of this post. We had it here in Florida this election, though many may not have known it. The proposal to amend Florida's constitution to raise the state's minimum wage to $6.15 per hour, increased annually thereafter according to inflation, was put before Florida's voters with the intent to increase turnout by those who would support the Democratic Party's presidential candidate. As we now know, the Democratic presidential candidate lost in Florida, and in the nation, but the minimum wage amendment passed. What a legacy.

Can we expect more of such issue baiting in the future? Unfortunately, given the attention paid to the eleven gay marriage initiatives and how they supposedly affected voter turnout nationally, the answer appears to be yes. Our poor constitution. It deserves better.

Thursday, November 04, 2004
Third DCA Nominees
My thanks to the person who sent me the following list of persons nominated by the Judicial Nominating Commission for the Third District to fill three positions on that court. The vacancies are the result of retirements by Chief Judge Schwartz, Judge Goderich, and Judge Shevin.

My understanding is that Governor Bush will appoint three of the following 18 persons to the district court:

Charles Auslander
Jennifer Bailey
Michael Chavies
Jonathan Colby
Angel Cortinas
Kevin Emas
Alex Ferrer
Rosa Figarola
Henry Harnage
Maria Korvick
Marc King Leban
Henry Leyte-Vidal
Kathryn Pecko
Cristina Pereyra-Schuminer
Lisette Reed
Leslie Rothenberg
Scott Silverman
Richard Suarez

The list was apparently submitted in the last couple of weeks, so the Governor will make his selections before the year's end.

Engle Arguments
Yesterday, the Florida Supreme Court heard oral arguments in the mammoth $145-billion Florida smokers' class action case. The Sun-Sentinel offers this story on the case.

S. Fla. Slot Machine Result Unclear
Whether Florida's voters passed Proposed Constitutional Amendment No. 4 remains uncertain. According to this story in today's Sun-Sentinel, a recount may be necessary, and the initial result may not be clear until all of the absentee ballots are received and counted.

Constitutional Amendment Suits
Well, Florida's voters had little trouble playing along in the fight between Florida's doctors and its plaintiffs' lawyers. Voters approved Proposed Constitutional Amendment No. 3, the shot across the bow fired by doctors at the plaintiffs' bar, capping attorney's fees in medical liability cases. Voters also approved the retaliatory amendments proposed by the plaintiffs' lawyers -- Proposed Amendment No. 7 and Proposed Amendment No. 8, which, respectively, make medical records relating to adverse medical incidents public and establish a "three strikes" rule for doctors. (For more on these proposals, see this prior post.)

These matters are not yet settled, though.

This story from today's St. Pete Times describes how the plaintiffs' bar is contemplating a federal constitutional challenge to No. 3 and how the medical establishment has already filed a suit relating to No. 7.

Also, the Miami Herald has an in-depth look at the same issues here.

Schiavo News
A few notable events occurred recently in the Terri Schiavo saga. First, on Tuesday, the St. Pete Times published this story, which indicated that Michael Schiavo may be unwilling to continue fighting the Schindlers. The story suggests that, were he to do that, the courts could wind up ruling in the Schindlers' favor by default.

That's possible, but I think it's a bit more complicated than that in this case. I'll reserve my thoughts until we see if any absence from the litigation actually occurs.

In other, related news, Michael has asked the Second District to vacate the stay set in place last week by Judge Greer. (See this prior post for more details on the stay.) The motion argues that the trial court's stay order reflects a policy of staying any decision until appellate relief can be sought and that, given the Schindlers' history of repeated efforts to undo the original judgment in this case, the cycle of stays will never end. The motion hints at the weariness described in the article linked above, saying, "there does not appear to be any benefit in participating in such a process."

You can read the motion to vacate the stay here.

Florida Supreme Court: Striking Pleadings As Sanction
This decision issued last week by the Florida Supreme Court involved a trial court's order striking a pleading as a sanction for discovery abuses. The district court had found that decision to be within the trial court's discretion but reversed the decision anyway because the defense raised in the pleading showed the opposing party's claim to be without merit. Reviewing the district court's opinion, the supreme court held that review of an order striking a pleading should simply determine whether the trial court abused its discretion, and the high court remanded the case to the district court to reconsider the issue.

Florida Supreme Court: Implied Contracts for Utilities
Those interested in utility regulation, and in particular electric utility regulation, may be interested in this decision issued last week by the Florida Supreme Court. The court approved the notion that where an electric utility's franchise agreement with a municipality expires, and the utility and municipality are still negotiating a new agreement, a court may, under some circumstances, extend the former contract by implication through the negotiating period. The ultimate impact of this decision relates to frachise fees imposed on the utility by the agreement and which are passed on by the utility to its customers.

Those watching this area may wish to note that another decision involving the same subject may be on its way. Though the court had two conflicting cases before it, and the court resolved the conflict, the court reached a result in only one of the two cases.

Wednesday, November 03, 2004
First DCA Nominees
The Judicial Nominating Commission for the First District has sent the names of six nominees to Governor Bush for an appointment that will fill the vacancy created by the retirement of Judge Booth. Thirty persons applied for nomination, and here are the six persons selected:

Nikki A. Clark, 52, Tallahassee
Jacalyn N. Kolk, 55, Panama City
Scott D. Makar, 44, Jacksonville
Charles A. Stampelos, 54, Tallahassee
Bradford Lee Thomas, 50, Tallahassee
Richard R. Townsend, 56, Green Cove Springs

The Governor will make the appointment by the end of 2004.

We survived!

Tuesday, November 02, 2004
Election Day

May it be over today...

Monday, November 01, 2004
Amendments Redux
Well, I finally managed to put together some thoughts on each of this year's proposed amendments. For convenience, here are links to the posts:

No. 1 (parental notification)
No. 2 (citizens initiative deadlines)
No. 3 (med mal attorney's fees)
No. 4 (slot machines)
No. 5 (minimum wage)
No. 6 (high-speed rail repeal)
No. 7 (medical records)
No. 8 (doctors' three-strikes)

One final thought on the proposals. Doug Murray, who runs the always-interesting Lines In The Sand blog, was astute enough to notice this: Article X, section 19, of the Florida Constitution is currently the high-speed rail provision. Proposed Constitutional Amendment No. 6 seeks to repeal that amendment, and Proposed Constitutional Amendment No. 4 seeks to adopt a new Article X, section 19, regarding slot machines in Miami-Dade and Broward. What happens if No. 4 passes and No. 6 fails?

I believe the answer is that the Secretary of State will renumber the text of No. 4's proposal to become a new section, such as Article X, section 20. Ultimately, no matter how things turn out, any conflicts in the organizational scheme will be corrected.

Proposed Constitutional Amendments Nos. 4, 5, 6
I know, I know, it's really too late to be posting anything about the proposed constitutional amendments for tomorrow's election, but if only for the sake of thoroughness, I'm going to talk about the three remaining proposals. I'll be quick about it.

Proposed Constitutional Amendment No. 4 would authorize Miami-Dade and Broward Counties to hold referenda to determine whether slot machines should be permitted in the respective counties' existing pari-mutuel facilities. To put that in more plain English, if this amendment is approved, residents of those two counties will get to vote on whether they will permit existing horse racing, dog racing, and jai-alai facilities to install slot machines. Obviously, each county would get to vote only with respect to its own facilities.

The little something extra tossed into this proposal is its tax provision. The proposal authorizes the Legislature to tax the slot machine revenues, and any such taxes "must supplement public education funding statewide." You've probably seen the commercials talking about how approving this amendment will (or won't) help our schools. There's a longer story here than I have time to tell -- another day, perhaps -- but I will sum things up in this way: don't expect public school spending to increase if this amendment passes and slot machines are approved.

Vote for or against this amendment based on whether you think residents of those two counties should be able to decide whether to allow slot machines at the betting tracks. Don't vote for or against it based on some notion that it will improve our schools.

Proposed Constitutional Amendment No. 5 would increase the minimum wage in Florida to $6.15 per hour. That's interesting, but it's not the most interesting part of the proposal. The most interesting part is that the amendment will further increase the minimum wage on an annual basis, indexed to inflation.

I'm a lawyer, not an economist. I frankly have no idea what the economic impact will be if we increase the minimum wage this year to be above the federal minimum or if we continue to raise the minimum wage automatically each year thereafter. I might have an idea about whether this is the sort of subject that should be addressed in the state constitution, and of course that's something that people will differ on.

Proposed Constitutional Amendment No. 6 would repeal the high-speed rail amendment that Florida voters originally approved back in 2000. The original amendment required the planning and construction of a 120+ mile-per hour high-speed rail system linking Florida's five largest urban areas. Governor Bush has backed the effort to repeal the prior amendment, calling the bullet train requirement too expensive for the state to fund.

The most complicated aspect of this proposal is figuring out how to vote after you decide whether you would like to keep the high-speed rail requirement. If you want to keep the high-speed rail law, you should vote against this amendment. If you want to eliminate the high-speed rail law, you should vote for this amendment.

Proposed Constitutional Amendments Nos. 3, 7, 8
Proposed constitutional amendments numbers 3, 7, and 8 have to be examined together. They are the collective product of an ongoing war between Florida's plaintiffs' lawyers and its doctors. It's not hard to tell who proposed which amendment.

Proposed Amendment No. 3 would effectively limit the amount of a plaintiffs' attorney's fees in a "medical liability" case by guaranteeing the claimant's ability to keep a certain percentage of any recovery: 70% of the first $250,000 recovered and 90% of any additional recovery. The claimant may be separately obligated to pay costs associated with the claim, and these limits apply only where the lawyer and client utilize a contingency fee agreement -- an agreement that springs to life if a contingency, usually the recovery of money, is met.

Proposed Constitutional Amendment No. 7 would give patients or potential patients of a health care facility or a health care provider the right to inspect and obtain copies records relating to adverse medical incidents.

Proposed Constitutional Amendment No. 8 would prohibit the state from licensing doctors who have committed three or more "incidents of medical malpractice," as determined by final judgments, agency decisions, or binding arbitration decisions.

Wow. That's one hit against the lawyers, two hits against the doctors.

All three proposals are rather dramatic changes from current law.

Attorney's fees are currently capped by Rule 4-1.5 of Florida's Rules of Professional Conduct. The caps provided there are applicable to all personal injury or property damage cases involving contingency fee agreements, but the rule's caps are less harsh for attorneys and more structured than the simple formula provided in the proposed constitutional amendment.

Current law also requires health care providers to investigate and compile reports about what may loosely be thought of as adverse medical incidents, but the law makes those materials confidential. They're basically disclosed only to the state for regulatory oversight purposes. The amendment would make such records available to a segment of the public, and once released there are no restrictions on what a recipient can do with the materials.

The "three strikes" provision is, to my knowledge, a complete change. As far as I know, there is nothing like it under the law. Doctors are licensed based on their demonstrated competency (or incompetency), but there is nothing in the way of a fixed standard based on findings made by someone else -- be it a jury, a judge, an administrative agency, or an arbitrator.

So is any of these proposals a good idea? Constitutional purists would have any easy time arguing that all of these proposals have the potential for some catastrophic side effects and therefore should be effectuated, if at all, through legislation, not constitutional amendments. After all, legislation can generally be amended or repealed in any given year. Also, the legislature can investigate laws to see if they work or not and make incremental changes, over time, if necessary.

By comparison, under Florida's current constitutional scheme, constitutional amendments are approved by the public and, once approved, remain in place until some other constitutional amendment repeals or supercedes it. The public generally does no investigation to determine the effects of a proposed amendment. In fact, the public usually has little knowledge of what a proposed amendment even says -- the ballot includes only a summary of the amendment, not the amendment's actual language.

With all that in mind, it's certainly reasonable to vote no on all three of these amendments solely on the notion that they have no place in a constitution.

Looking a little deeper, some additional observations can be made.

On the attorney's fees provision, any time you decrease an attorney's contingency fees, you make that attorney more selective about what cases to take. The result is that "longshot" cases, or cases with small fee potential to begin with, become less attractive, and people with those sorts of claims will find it harder to find a quality attorney to handle their cases. On the other hand, these same factors are already at work under the existing cap scheme, and it's difficult to say that any particular amount of movement in the cap levels will surely result in claimants with meritorious cases not being represented.

On the medical records issue, it should be noted that the confidentiality associated with adverse incident reports and investigations has been put in place in order to encourage frank reporting by doctors and hospitals, something the legislature has determined will ultimately result in a safer medical practice environment. A constitutional declaration that such reports will be made public is almost surely going to have two effects: doctors and hospitals will be discouraged from reporting incidents in detail, and the legislature will be under pressure to reduce or eliminate the reporting requirements in the first place.

Finally, on the "three strikes" provision, it's tough to say anything positive about the proposal. It offers no distinction between minor negligence and extraordinary negligence. If passed, it would leave doctors petrified of any malpractice claim being heard on its merits, whether before a jury or an administrative body or an arbitrator. Doctors would demand that their insurers settle all cases, which in turn will drive malpractice rates up, which in turn will make practicing medicine in Florida more expensive. Also, doctors will be encouraged to have low-risk medical practices and avoid high-risk practice areas, so finding a doctor to treat someone with medical needs in a high-risk area will become more difficult, to say the least. Finally, though I will not go into details, if this proposal passes, expect the resulting amendment to be challenged as violating one or more provisions of the United States Constitution.

Manual Recount Rule Case
You may recall that, last week, the First District rejected the Florida Democratic Party's challenge to an emergency rule on manual recount procedures recently promulgated by the Secretary of State. A divided district court, however, certified a question to the Florida Supreme Court.

The district court's decision is available here.

On Thursday, the FDP appealed to the high court, which took the unusual step of ordering briefing by Friday on whether the case actually presents a question of great public importance and whether the high court can grant any meaningful, lawful relief after the general election is held. You can read the supreme court's order on jurisdictional briefing here.

The parties quickly submitted their jurisdictional briefs. You can read the FDP's brief here and you can read the Secretary's brief here.

Later on Friday, the court entered an order postponing its decision on jurisdiction and requiring that merits brief be submitted by 10 a.m. Monday. That's today.

The emergency rule at issue was formally published on Friday, and you can read it on pages 1-4 of this administrative publication.

Media Dilemma
While perusing this morning's news, I happened upon this story from the AP about a photographer being arrested for taking pictures of voters in line to vote. Apparently, elections officials in Palm Beach County have just recently enacted rules against photographing or interviewing those waiting in line to vote. The idea is not to intimidate the voters, and it seems this photographer was trying too hard to get that good shot.

If anyone spots a follow-up to this story, or a newspaper editorial on it, please let me know. Florida's papers have been rather quick to defend measures taken and arguments made in support of ensuring voters' ability to vote, even when the problem being discussed could well be characterized as an annoyance (long lines) or a matter of civic responsibility (properly registering and knowing where to vote), rather than actual intimidation or disenfranchisement. So I'm very curious about how the media will react to a story that pits the media's own First Amendment right of the press against voters' right to vote without intimidation.

Schiavo News
On Thursday, Judge Greer held a hearing in the guardianship case.

Prior to the hearing, the Schindlers filed their notice of appeal from the ruling dismissing their most recent motion to vacate the original judgment, and based on the now-pending appeal, the Schindlers asked Judge Greer to extend the stay of that dismissal order until the appeal is concluded. Judge Greer had previously entered a stay that would expire on December 6.

Thursday's hearing resulted in this order, which stays the dismissal order until the Schindlers complete their appeal in the Second District.

That's more than appropriate and another example of how Florida's courts have attempted to allow the parties in the Schiavo saga a meaningful opportunity to pursue any legally permissible appellate relief.

I know there are a number of people out there who believe this judge or that judge is predisposed to rule for a certain side, but I continue to say that I've seen none of that. The courts are making their rulings based on their sincere views of how Florida law applies to the events at issue, and to the extent the unsuccessful party has a right of appeal, the courts have readily stayed their rulings to ensure that right is not eviscerated by events that would moot the case.

We saw that last week in the Florida Supreme Court's order (available here) staying the constitutional case after Michael Schiavo's attorneys insisted that Terri's feeding tube should be immediately removed. We see the same principle being effectuated by this most recent order from Judge Greer.

So my hat's off to the courts for continuing to do the right thing.

One last thought along these lines. Some may wonder if granting a stay indicates that the court has some doubt about the correctness of the decision being appealed. In a word -- No. I've seen judges (in other cases) refuse to grant stays out of what appeared to be an unfortunate certitude that their rulings were correct, and without regard to the harm that might occur if that turned out not to be the case. But when a judge grants a stay, it is almost always done for one reason: to ensure that nothing irreparable or irreversible happens while an appeal goes forward. In the case of Terri Schiavo, removing her feeding tube and allowing her to die would certainly constitute irreparable and irreversible harm, if an order effectively allowing the tube's removal were to be reversed on appeal.

Well, I made it through the unexpected deluge of last week, which carried a bit over into the weekend. In case anyone out there's an aspiring lawyer, know that sometimes you just can't control how cases or projects just explode, and the next thing you know a week or two have gone by and you've forgotten to eat.

The weekend's running injuries aside, the casualty of the last week was this web log. I'm not sure how much good it'll do for me to discuss the six as yet undiscussed proposed constitutional amendments now, but I suppose I will this morning. In abbreviated form. And do a Schiavo update.

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