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Friday, December 31, 2004
Happy Happy
'Tis the end of 2004, and as I sit in a comedy club in Ybor City, I think to myself: I haven't blogged in two days. Wow. Well, there's next year. I look forward to catching up then. Happy New Year, folks, and thanks for stopping by.

Wednesday, December 29, 2004
Schiavo News: A Little Help
Governor Bush's effort to obtain review in the U.S. Supreme Court got a boost today in the form of an amicus curiae brief from the American Center for Law and Justice. You can read the ACLJ's amicus brief here.

Schiavo News: Latest Appeal Lost
Well, the latest step in the Terri Schiavo saga has now been taken. Today, the Second District rejected the latest appeal by the Schindlers, affirming Judge Greer's decision that the Schindlers' most recent effort to set aside the original decision on Terri's wishes is insufficient. (For more on the Schindlers' appeal, see this prior post.)

The Second District issued its decision without a written opinion. That's a "per curiam affirmance" or "PCA" in appellate parlance.

Today's PCA is significant, and between breaths here at work I'm going to try to sum things up. There are some interesting appellate angles here that I will set aside for now to focus on the practical consequences of today's decision.

To begin, this decision does not entirely end the case. The Second District still has not issued its mandate, and that will not happen until one of two things occurs: (1) the Schindlers do nothing during the 15-day period in which motions for rehearing and rehearing en banc can be filed, or (2) the Schindlers timely file one or both forms of rehearing motion, or request a written opinion, and the court rules on whatever they file.

When the Second District issues its mandate, the case will be returned to Judge Greer. Assuming there is no change from the current decision affirming the result below, the operative order going forward will be the Second District's directive in this June 2003 decision, which instructed Judge Greer to hold a hearing to set a date for the feeding tube's removal.

As for the pending U.S. Supreme Court appeal, recall that the U.S. Supreme Court has not yet decided whether to hear Governor Bush's appeal from the Florida Supreme Court's decision declaring "Terri's Law" invalid. (For more here, see this post and this one.) Recall also that the Florida Supreme Court had stayed its decision regarding "Terri's Law" until November 29, 2004, to give the Governor time to seek a further stay from the U.S. Supreme Court. I am not aware that the Governor ever sought such a stay, and the Florida Supreme Court's stay has now expired. So, the Governor's current effort to appeal to the U.S. Supreme Court has no effect on what at the moment looks like the coming removal of Terri's feeding tube, unless the Governor requests and is granted a stay by that court.

One close follower of this saga has already asked me whether the Schindlers can appeal this latest decision to the Florida Supreme Court. In short, no. Assuming a motion for rehearing or written opinion is not filed or, if one is filed, it is denied without comment, the Schindlers can theoretically ask the Florida Supreme Court to review the Second District's decision, but the Florida Supreme Court will not have the ability to grant that request. The PCA issued today is, in the context of this case, unreviewable by the Florida Supreme Court. It is possible that the Second District could issue a written opinion based on a motion by the Schindlers for rehearing, and such an opinion might -- might -- open the door to review by the state supreme court, but the odds of a written opinion being issued that provides a means for supreme court review are very, very poor.

You might wonder whether today's decision can be reviewed by the U.S. Supreme Court. The answer is yes, if that court wishes to hear the case. The Schindlers have argued that the refusal to revisit the original decision deprives Terri of her religious freedoms under the First Amendment, an argument that raises an issue of federal law within the U.S. Supreme Court's jurisdiction. Of course, the Schindlers cannot ask the U.S. Supreme Court to hear the case until the matter is over in the Florida courts, and absent some form of stay from the nation's top court, the feeding tube would be removed long before the court resolved the case. So U.S. Supreme Court relief remains a long way off.
Bottom line? The Second District's mandate should issue 16 days from now unless a rehearing motion or motion for written opinion is filed. I suggest watching for the Schindlers to file one of those motions, which will take at least weeks to resolve. I also suggest watching to see if, before the Second District can issue its mandate, the Governor's office prepares a motion asking the U.S. Supreme Court to stay the "Terri's Law" case while that court decides whether to hear the Governor's appeal.

As for me, I'm going to update the 2004 Schiavo Posts page tonight. I haven't done that since late October, and I suspect a number of folks may be visiting here soon who may be interested in an up-to-date, though horribly long, chronology.

First District: Workers' Compensation
At least the First District waited until after the (religious) holidays to inform the claimant in this case that he's not getting his new house.

Schiavo News
Today's Miami Herald has a year-end update here.

Join Now, Or Pay Later
If you've put off joining the Eleventh Circuit's bar, don't delay another day. On January 1, the application fee goes from $20 to $170.

Tuesday, December 28, 2004
Supreme Court: Economic Loss
Those of you who know me well know that there is only one case that's come out in the last week that I really, really care about: the Florida Supreme Court's latest economic loss decision: Indemnity Insurance v. American Aviation, Inc.

The court reached its decision in the context of five questions the Eleventh Circuit certified in this case, which involved an aircraft owner's negligence claim that poor maintenance by the defendant, performed on the plane while it was owned by a prior owner, resulted in damage to the plane (and only the plane) during the plaintiff's ownership. A federal district court dismissed the claim for failure to state a cause of action under Florida law. The parties argued that Florida's economic loss doctrine controlled, and the circuit court certified a series of questions regarding how that doctrine should be applied to the case's allegations.

The supreme court's decision began what looks like a recharacterization process. The court has started to define Florida's "economic loss rule," sorting it into two forms, one of which applies in the context of contractual privity and the other in the context of product manufacture or distribution. The court held that neither "rule" has any application in the Eleventh Circuit's case, since it involves no privity and no manufacture or distribution.

On the whole, the court's decision is substantively consistent with established Florida law. The court receded in part from a prior decision and disapproved a district court decision to the extent they conflict with the court's new statement regarding the "rule"'s scope, but those disapprovals are merely technical in the sense the negligence result in each case should withstand them. Ultimately, and without ever saying so, the court's decision alters the lexicon by limiting the "rule" to instances of active extinguishment of otherwise cognizable torts, carving out from the "rule"'s scope situations where the allegations fail to state a cognizable tort in the first place.

There's no harm in that approach, though it is inconsistent with the approach taken in much of the existing case law, including the supreme court's own past decisions. Over the past two decades, Florida's courts have spoken of the two areas I just described under the single, arguably inaccurate heading "economic loss rule," and the cases' discussions have moved between these two areas with hardly a pause or distinction. Some or all of the resulting confusion about the "rule" might have been avoided if it had been seen more as a doctrine of multiple rules and the cases been appropriately categorized. Unfortunately, that approach never caught on. I expect it will soon. Indemnity Insurance is a start, though it carves out of the "rule" pieces that belong within the overall doctrine.

The puzzling part of the court's decision is that, after concluding the "rule" has no application to the facts of the federal case before it, the decision ends. The court sends the case back to the Eleventh Circuit for an examination of whether a claim for negligence is stated. Yet perhaps the Eleventh Circuit hoped the Florida Supreme Court would answer that very question, since it cannot be resolved without examining Florida's economic loss principles. Indeed, that question arguably cannot be answered without examining some of the same "economic loss rule" cases discussed in the Indemnity Insurance opinion. I wonder whether the Eleventh Circuit will feel comfortable determining whether a negligence claim is stated, or if the court will be inclined to certify another question. I can't wait.

Eleventh Circuit: Mail Fraud & Punitive Damages
Those interested in fraud theories against large defendants or the constitutional reduction of punitive damages judgments will be interested in this concise Eleventh Circuit decision, where the court upheld a RICO judgment (predicated on mail and wire fraud) against AT&T based on the company's billing practices in connection with a 900-number service. The jury awarded the plaintiff $115 in actual damages and $1 million in punitive damages. The court held that the punitive damages award should be reduced to $250,000.

Eleventh Circuit: Bankruptcy and Eleventh Amendment Immunity
Eleventh Amendment fans will enjoy this short decision from the Eleventh Circuit, which invalidated Congress's effort to abrogate states' Eleventh Amendment immunity through section 106(a) of the Bankruptcy Code. The court held that debtors may not bring claims against states (absent a state's consent) for unlawfully attempting to collect debts after receiving notice of a debtor's bankruptcy filing.

Eleventh Circuit: Maritime Law & Rule 50(b)
The Eleventh Circuit has apparently determined that it should verify its admiralty jurisdiction before applying admiralty law, as the court did in this decision.

The case involved a suit against a cruise line based on a waiter's off-shore rape of a passenger. After a jury found in the plaintiff's favor, the district court granted the defendants judgment under Rule 50(b) based on an evidentiary ground the defendants had never raised. The Eleventh Circuit held this was error.

The court also held that, under maritime law, common carriers are strictly liable for crew member assaults. The court rejected an argument that a reasonable care standard applies.

Supreme Court: Jimmy Ryce
The Florida Supreme Court has resolved two more issues concerning the Jimmy Ryce Act. (Recall that the court decided the Anders issue a couple of weeks ago in this case.)

The court held, here, that Kansas v. Crane does not require that a jury be instructed that the defendant must have serious difficulty controlling his or her behavior. Essentially, the court determined that the presently recognized elements of a Jimmy Ryce action sufficiently encompass difficulty controlling behavior.

In this case, the court held that a person need not be in custody for a sexually violent crime when Jimmy Ryce proceedings are initiated.

Both decisions were 4-3, with Chief Justice Pariente, Justice Anstead, and Justice Quince dissenting.

Monday, December 27, 2004
Fourth District: Rule 3.800(b) Relinquishments
Where a sentencing error is spotted after the defendant's first brief is served, can the appellate court permit the defendant to withdraw the brief and proceed to the lower court under Rule 3.800(b)? In this case, the Fourth District said no.

Perhaps it is significant that the briefing in this case had already been perfected. It makes some sense to say that where the briefing is perfected and the court is now poised to consider the case's merits, withdrawing a brief already served should not be permitted. Likewise, if the briefing is not yet completed, it makes sense to permit a defendant to withdraw a brief to raise an unpreserved sentencing issue in the trial court.

Third District: Outrageous Conduct
One way or another, I am always interested when the judiciary addresses outrageous conduct claims as a matter of law. Intentional infliction of emotional distress is one of the very few torts where the bar even to get to a jury is supposed to be very high.

In this case, the Third District held that a trial court correctly dismissed a pastor's intentional infliction claim. The defendants allegedly called the pastor "Satan" and other things in front of his congregation and told the audience he had stolen church money to buy a Mercedes. Possibly tortious in various ways, but not outrageous, said the court.

Third District: Drone Debate
If the term "alimony drone" catches on, it's because of this decision from the Third District.

Third District: Condo Homesteads
How do you calculate the size of a condominium for purposes of the Florida Constitution's half-acre homestead limitation? As a condo owner, I am a bit surprised to say that I have never thought about it. Interestingly, neither had the judiciary until the Third District considered this case, which disapproves the trial court's approach and thus really just tells us how not to do it. Judge Fletcher drafted a concurrence that offered a formula.

Fifth District: Automatic Stays
Does the automatic stay triggered where a public officer or body initiates an appeal apply in civil forfeiture cases? Yes, said the Fifth District in this case.

Questions, questions
In this case concerning the breadth of the stillbirth exception to the impact doctrine, the Fourth District certified the following to the Florida Supreme Court as a question of great public importance:

Absent physical impact, may a man recover for negligent infliction of emotional distress for the loss of a fifteen to eighteen week-old fetus under Tanner v. Hartog, 696 So. 2d 705 (Fla. 1997)?
The Fourth District answered the question in the negative.

First District: Sentencing Conflict
Somewhere, in the depths of a certain Tallahassee landmark, a law clerk sits. Eager. Giddy. Awaiting the opportunity to investigate and help resolve the latest sentencing conflict among the district courts of appeal. And here it is.

Happy holidays.

Third District: Products Liability
Products liability fans will be interested in this decision from the Third District. In the context of a pool drain case, the court discussed product design and warnings, treated the risk-utility test as an alternative to the consumer expectations test, and rejected the trial court's application of the multiple accident theory that had been used to eliminate Fabre defendants on one of the plaintiff's theories.

Third District: Peremptory Strikes
This decision from the Third District presents an example of how an ordinarily permissible basis for striking a prospective juror is insufficient when the juror and the defendant are members of the same racial minority.

Fourth District: Rule 1.525
If you are keeping up on the latest developments concerning Rule 1.525, the rule requiring attorney's fees motions to be filed within 30 days of the entry of judgment, check out this decision from the Fourth District.

Third District: Mere Flight's No Crime
Maybe it's me, but the state's position in this case seems, well, unbelievable. The Third District rejected it, though the court certified a possible conflict that may send the case to the state supreme court.

Third District: Made Whole Doctrine
Wow. Two "made whole doctrine" cases in one month. I discussed the first case in this prior post. The latest is from the Third District, sitting en banc, and is available here. The court divided over how the principle interacts with an insured's comparitive negligence. Very interesting.

First District: Extending Time For Service
In this case, the First District reminds us that a trial court can extend the time for serving process on a defendant even in the absence of good cause.

Third District: Forum Non Conveniens
This decision from the Third District is chock full of interesting angles. A number of foreign cruise ship workers sought to bring Jones Act (federal maritime injury) claims in Florida courts for injuries suffered in foreign waters, and the defendants sought to dismiss the cases under the forum non conveniens doctrine.

Why would the plaintiffs want to bring their claims here, when nearly everything connected with the case concerned other countries or even other continents? In my experience, there are usually three reasons: the generosity of American juries, the low barriers to litigation in America's courts (in other countries, for instance, a losing plaintiff may always be required to pay the winner's attorney's fees, or a plaintiff may be required to put up a costs bond in advance for all of the defendant's expected costs), and the high recognition given to American judgments in other countries. State courts, on the other hand, don't like using the Florida taxpayer-funded judicial system to resolve large, time-consuming disputes that basically have nothing to do with Florida. Therein lies the tension.

Sitting en banc to clarify its case law, the Third District split over how to apply the forum non conveniens doctrine in these cases. The majority concluded the cases should dismissed and litigated elsewhere. Three judges dissented. Lots of good discourse here.

Third District: Tobacco Decision
Those following tobacco litigation will be interested in this latest decision in the flight attendants' class action. The Third District upheld an individual, stage 2 award against the cigarette manufacturers.

Those interested in Florida's various legal doctrines may wish to check out this decision for its application of the "indivisible injury rule," which the court used to determine that the defendants should be jointly and severally liable for the plaintiff's damages.

Schiavo Thoughts
I thought I should finally mention that show. Some of you know which one. It aired last Saturday on A&E and was called "Between Life and Death: The Terri Schiavo Story." The show included three clips with comments from me. Yeah, that was me. The producers called me last November and asked if they could interview me. I agreed to speak but only on the legal events that had already taken place. I didn't want to comment on "Terri's Law," which at the time had just been passed.

I didn't know if anything would ever come of the interview. I was surprised to get an email from the producer last Saturday afternoon -- well over a year later -- saying the program would air on A&E that day. Unfortunately, when I got the email, I was shopping in Orlando, a long way from my home in St. Pete.

I finally got to see a tape of most of the program this weekend. A very kind reader has also emailed me, saying he recorded the entire program and would send me a copy. Very kind, indeed. A great Christmas gift. Anyway, I thought the show did a decent job of explaining the circumstances of the case. Both "sides" had parts of their stories told, and both "sides" probably felt minor but critical elements of their stories were left out, which probably means the program was pretty well balanced.

Very Merry
Christmas weekend was very nice for me. Merry, in fact. Hope it was for you, too.

Friday, December 24, 2004
Schiavo Thoughts
UPI ran a story this week about the Terri Schiavo saga. The story is available here and here. The author assumes the U.S. Supreme Court will hear Governor Bush's challenge to the decision overruling "Terri's Law," and, if I read the story correctly, he predicts the result will be a 5-4 decision reaffirming the principles from Cruzan v. Director MHD without deciding Governor Bush's "14th Amendment argument." The author labels the justices as conservative or liberal and, deeming Cruzan to have reached a conservative result, believes the court's conservative majority will again carry the day in the Schiavo case.

Though some readers have asked me to comment on this story, and I have leisurely pondered it and Cruzan now for a couple of hours, I have decided to say little about the story itself. I am not sure I understand the author's conclusions about how the court would rule if it took the case, and I don't believe broad labels like "conservative" or "liberal" are very useful for predicting how a judge will decide a case involving the sort of issues found in Terri's case.

The Cruzan case is available here, and I commend it to anyone interested in this area.

Cruzan involved a Missouri woman in a persistent vegetative state who was being kept alive with a feeding tube. Years earlier, she had made comments to others about not being kept alive in such circumstances, and her family wanted the feeding tube removed. The hospital where she stayed, however, wanted the tube left in place. So did the State of Missouri. A trial judge examined the case and, to oversimplify, ruled in the parents' favor. The state supreme court reversed, holding that the state's interest in preserving Cruzan's life could only be overcome by clear and convincing evidence she would not wish to continue her medical care. Cruzan's guardian and her parents then asked the U.S. Supreme Court to reverse that decision. The high court took the case, but it affirmed the result below.

The argument made to the U.S. Supreme Court was that Cruzan's federal due process rights included a liberty interest in refusing unwanted medical treatment, including the use of a feeding tube, and that Missouri could not deprive her of that right. The court framed the issue to be decided in the case as whether Missouri's clear and convincing evidence requirement violated the Fourteenth Amendment's due process clause. A majority of justices said no.

So what does Cruzan tell us? It tells us that the federal constitution does not prohibit states from using the clear and convincing standard when evaluating incompetent patients' wishes. That's it, and that has nothing to do with anything that has ever been at issue in Terri's case.

Two concurring opinions from the "conservative" Cruzan majority deserve some attention. Justice O'Connor observed that a feeding tube cannot be distinguished from other forms of medical intervention. She wrote:

Artificial feeding cannot readily be distinguished from other forms of medical treatment. Whether or not the techniques used to pass food and water into the patient's alimentary tract are termed "medical treatment," it is clear they all involve some degree of intrusion and restraint. Feeding a patient by means of a nasogastric tube requires a physician to pass a long flexible tube through the patient's nose, throat and esophagus and into the stomach. Because of the discomfort such a tube causes, "[m]any patients need to be restrained forcibly, and their hands put into large mittens to prevent them from removing the tube." A gastrostomy tube (as was used to provide food and water to Nancy Cruzan) or jejunostomy tube must be surgically implanted into the stomach or small intestine. Requiring a competent adult to endure such procedures against her will burdens the patient's liberty, dignity, and freedom to determine the course of her own treatment. Accordingly, the liberty guaranteed by the Due Process Clause must protect, if it protects anything, an individual's deeply personal decision to reject medical treatment, including the artificial delivery of food and water.
(citations omitted.)

Justice Scalia added that, in his view, the federal constitution simply has nothing to do with any of this. He explained that no one has a substantive federal right under the due process clause to deliberately end his or her own existence, regardless of the circumstances.

These are certainly conservative views in some senses, but do they align with what many seem to believe a "conservative" court would do with Terri's case? Does the label "conservative" help here at all? I don't think so.

Supreme Court: No Opinion After All
Quick: what was the first proposed constitutional amendment on the this year's ballot? Right, the parental notification amendment proposed by the legislature. You may recall that the ACLU challenged the proposal's summary as being misleading, and in this order, the Florida Supreme Court took the interesting and, I believe, unprecedented step of striking the proposal's summary and ordering it replaced with the proposal's text. The order concluded with the words "Opinion to follow.

At the time, Mark Lane, of flablog, had wondered aloud why the court would correct a perceived deficiency in the parental notification proposal but simply strike from the ballot the proposed amendment to double the homestead exemption. Since I like this sort of stuff, I took a stab at guessing the answer in this predictive post.

Was I right? Well, I'll say yes, with a wink: on Wednesday, the court issued this unanimous follow-up order, which essentially said that no opinion will follow after all.

Abstract Play
Did I say "morning"? Yesterday just reinforced an old lesson: never think you'll have a brief done in the morning. Or the afternoon, for that matter. Anyway, it's Christmas Eve's dawn, and I'm staring at downtown St. Pete. It's ghostly quiet. An occasional municipal bus rides by but, otherwise, there's hardly a sign of life. Everyone must have slept in, and no one's gone to work.

Good. I'm not going to work either. I'm just going to sit here for, well, a long time and catch up. Great stuff in these last couple days. Got to get to it. To those who've emailed me recently and to whom I've either not responded or curtly responded, look for bigger, badder, better responses today.

Ho ho ho.

Thursday, December 23, 2004
Abstract Pause
I'm not on a Christmas break just yet -- I've been working to finish two briefs that need to go out before the end of today. One went out yesterday. The other will be done this morning, and then back to blogging...

Tuesday, December 21, 2004
Courthouse Wi-Fi
Law.com offers this story on wireless networks in courthouses. While the topic is not really Florida-law related, I thought I'd link the story anyway.

Wireless networks are the inevitable future in Florida's courthouses. It's important, though, that court administrators and judges understand what computer users can do with these networks and what can be used as substitutes if such networks are not made available. This story's a start.

It's a tech world now.

School Voucher Case
Yesterday, the Florida Supreme Court rejected the plaintiffs' motions to expedite review in the school voucher case. (The three sets of defendants have filed three separate appeals, and the orders denying the plaintiffs' motions in each case are available here, here, and here.)

Monday, December 20, 2004
Florida's Blaine Amendment
Over the weekend, I drafted some extensive thoughts on Florida's Blaine amendment. I had mentioned that provision in this post, which described how the amendment was suddenly a topic of conversation all over Tallahassee and, consequently, in the news.

It turns out that there's too much to say to include it all in a single post. Or two or three. Instead, I'm just going to post a thought or two at a time, and in the course of doing so try to explain what Florida's amendment says, what it means (the tough part), and what impact it has on our state. The implications and ramifications could be the subject of countless stories.

Let's start out with the text of the provision we're talking about. Article I, section 3 of the Florida Constitution contains three sentences, the third of which is commonly referred to as Florida's Blaine amendment:

There shall be no law respecting the establishment of religion or prohibiting or penalizing the free exercise thereof. Religious freedom shall not justify practices inconsistent with public morals, peace or safety. No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.
That third sentence is the source of the recent discussion about amending the constitution and the validity of the state's voucher program. The provision tells state and local government officials not to use public money to aid religious groups. What does it mean? And what or who is Blaine? I'll get there in coming posts.

Suit Numbers
Last week, in this post, I mentioned the jury's $5.7 million compensatory damages award in a Tampa case involving a young woman's claim against her apartment complex. The woman had been abducted and shot, and she apparently sued to make her apartment complext pay for lax security. The jury later ultimately awarded $10 million in punitive damages, bringing the total verdict to $15.7 million.

Over the weekend, the St. Pete Times ran this story about the fees the woman's lawyers might receive.

Saturday, December 18, 2004
Eleventh Circuit: Insurance Coverage
In this case, the Eleventh Circuit considered whether an insurance policy's coverage for advertising injuries provided coverage for claims of misappropriation of a customer list and other confidential information. Florida law controlled but Florida case law did not answer the question. Turning to out-of-state authorities, the Eleventh Circuit held that that the policy at issue did not cover the alleged wrongdoing, which had nothing to do with misappropriating advertising ideas or business styles, and the insurer thus had no duty to indemnify or defend.

Fifth District: Open Container Laws
This decision is good for the holiday spirit. Or spirits.

During a large event, a man was walking down a sidewalk along A1A in Daytona Beach with a group of others. They were all carrying red plastic cups. A police officer directing traffic spotted the group and observed the man holding his cup by his leg and altering his path in an apparent effort to avoid the officer. The officer crossed the street, grabbed the man's arm, and asked about the cup's contents. Hennessy was the answer, and when the officer arrested the man for violating the city's open-container law, the officer found Ecstacy pills on him as well.

The Fifth District reversed a decision denying suppression of the evidence and ordered the man released. The court concluded that the facts observed by the officer gave rise to no more than a hunch about unlawful conduct -- not enough to justify stopping the man.

Before you go celebrating this decision with a red plastic cup and a stroll down the local lane, keep in mind that the key to the ruling was the timing of the officer's detention. Had the officer not detained the man until after he admitted what was in the cup or after the officer observed the liquor's presence, the result would no doubt have been different.

Still, the case leaves me with one unanswered question: how many people carrying cups down the streets in Daytona are drinking Hennessy? Hmmm.

Fifth District: Inquiry By Trial Judges
When does a trial judge go too far in examining a witness? Here's an example.

Fifth District: Self-Defense
For those keeping track of which errors are fundamental in the criminal context, the Fifth District's decision here reminds you that erroneously adding the forcible felony exception to the self-defense instruction is one.

Fifth District: Alimony
As in this case, the Fifth District continues to urge family law attorneys to place evidence in the record of how federal taxes affect the parties' incomes. It helps in the alimony analysis.

Friday, December 17, 2004
Special Session Summary
The legislature's special session wrapped up yesterday in Tallahasee with the passage of a number of bills. My firm's government consulting group has done a first rate job of summarizing the new legislation in a report you can read here.

Make That Four New Appellate Judges
Governor Bush has been busy with appellate appointments. As mentioned below, he has appointed Edward LaRose, of Trenam Kemker, to the Second District.

The Governor has also appointed three persons to the Third District:

Angel Cortinas, of the U.S. Attorney's Office (SD Fla)
Leslie Rothenberg, of Steel, Hector, & Davis, and
Richard Suarez, of the Miami-Dade County Court bench

Oh my, what a day. Much work on a brief left me largely unable to post, but there are many things to mention. I'll get one or two quick posts up now and get the others up this weekend.

Supreme Court: Nursing Home Law
Yesterday, the Florida Supreme Court released a long-awaited decision in the nursing home area. The decision, available here, approved a decision by the Fourth District concerning whether (under pre-2001 law) a personal representative of a resident's estate can bring a statutory claim for a residents' rights violation if the asserted violation did not cause the resident's death.

The decision implicitly disapproved this decision released earlier this year by the Fifth District and approved this decision reached by the Second District.

For more on the merits of these cases, see this prior post.

The Supreme Court's lead opinion is unsigned but joined by four justices, including Justice Cantero, who also wrote a separate concurring opinion. The three justices who joined the lead opinion with Justice Cantero also joined his concurrence, which perhaps means there were actually two majority opinions, one "per curiam" and the other by Justice Cantero. This is a bit peculiar, but an explanation may lie in the case's age. The Fourth District issued the decision on review in 2000, and when the case was orally argued in 2001, two of the present justices (Justice Cantero and Justice Bell) were a year away from being appointed to the court. Perhaps one or both of the justices they replaced had a hand in what became the unsigned lead opinion. Just a guess.

New Second District Judge: Edward LaRose
I have heard that Governor Bush has appointed Edward LaRose to the Second District.

It's What?
I can't believe the day has slipped by so fast. I'm quite late in posting...

Thursday, December 16, 2004
Florida's Blaine Amendment
I wish I'd saved myself some time this morning to pen some thoughts on Florida's Blaine amendment -- the portion of Article I, section 3 of the Florida Constitution that prohibits the state from using public funds to aid religious institutions. That provision is making lots of news these days. I'll try to give a quick summary.

First, there's the legislature's special session on universal pre-kindergarten. That session is going on now, and whether religious schools can be part of a statewide pre-K program is a hot, hot topic in Tallahasee. Today's Miami Herald has this story on it.

Second, the state has now appealed to the Florida Supreme Court from the First District's decision in Bush v. Holmes. That decision declared Florida's Opportunity Scholarship Program to be unconstitutional under Florida's Blaine amendment because the program permits parents of students in failing schools to use state scholarship money to send their children to numerous alternative local schools, with no exclusion for religious schools.

Finally, with the hullaballoo over the pre-K program potentially involving religious schools, one powerful state senator is raising talk about amending the state constitution to remove the Blaine amendment portion of Article I, section 3. That would bring Florida's constitution squarely in line with the federal constitution and eliminate the controversy over whether the state constitution has a different meaning. Today's Tallahassee Democrat has an in-depth story here.

When I get some time in the next day or two, I'm going to post some extensive thoughts on the law at issue here. This is a truly fascinating subject, and one that should interest all Floridians because of its impact on so many aspects of state government. More to come...

Jury Award In Progress
A student who was abducted and shot has been awarded $5.7 million by a Tampa jury in a suit against her apartment complex, according to this story in today's Tampa Tribune. The jury will resolve the issue of punitive damages today.

Fourth District: Disqualification
From correspondence I've received over the past year, it seems that some folks believe a trial judge's repeated rulings against a party demonstrate bias and are grounds for disqualification. Not so. The statements made in this case, by comparison, are another story.

Fourth District: Made Whole Doctrine
If you are not familiar with Florida's use of the "made whole" doctrine in insurance cases, check out this case from the Fourth District for an example.

Fourth District: Local Action Rule
The distinction between a claim of lien against real property and claim on a surety bond is seen in this decision from the Fourth District.

Fourth District: Marital Settlement Agreements
Does a settlement agreement created during a divorce survive the parties' subsequent remarriage? Perhaps, but the Fourth District held that the agreement at issue here did not.

Questions, questions
You may recall this post from October concerning the Fourth District's split decision in this insurance subrogation case. In this order released yesterday in the same case, the court certified the following to the Florida Supreme Court as a question of great public importance:

May an employer who has been found guilty of destroying evidence critical to its employee's right to recover from a third party tortfeasor, and who has been forced to pay the employee damages for such destruction, be deemed a third party tortfeasor for purposes of a carrier’s subrogation rights under § 440.39(3)(a)?

Third District: Forfeitures
If you are interested in currency forfeiture proceedings, check out this en banc decision of the Third District, which examined the standing requirements associated with the preliminary adversarial hearing stage.

Third District: Workers' Comp Immunity
In this case, the en banc Third District held that an employer's act in granting an employee permission to steal a backhoe was, as a matter of law, not the legal cause of the death of someone injured during the allegedly stolen backhoe's operation.

Second District: Work Product
If the parties agree that the plaintiff can have a videographer attend the plaintiff's compulsory medical exam, is the resulting videotape work product? Yes, said the Second District in this case, though it remains to be determined whether the defendant can overcome the work product protection.

Not So Important After All
Recently, the Florida Supreme Court discharged its jurisdiction in this case, which involved the following question certified by the Fourth District to be of great public importance:

Does the litigation privilege of Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. United States Fire Insurance Co., 639 So. 2d 606 (Fla. 1994), apply to claims alleging direct interference with an attorney's fee earned by representing a consumer's claim for unfair or deceptive practices in a sale of a motor vehicle, where the interference arose from a seller-initiated settlement without counsel in which the fee due the lawyer was reduced without the lawyer's consent?
This was an interesting case. For more on the district court's opinion and that court's certification, check out this prior post and this one, respectively.

Florida Supreme Court: Insurance
Where an insurance policy covering an employer's workers' compensation liabilities excludes coverage for injuries intentionally caused by the employer, does that exclusion apply where the employer is successfully sued by an employee under the (now statutorily superceded) theory that the employee's injury was substantially certain to occur? No, said a divided Florida Supreme Court in this decision, answering two questions certified to the court by the Eleventh Circuit.

Interesting, the court previously decided that workers' compensation immunity did not apply to the underlying claims in this case. As a result of this latest decision, coverage exists for acts for which no immunity exists. Three justices dissented.

Supreme Court: Evidence Rules
The Florida Supreme Court has adopted the recent legislative amendments to the Evidence Code (to the extent they are procedural), with one exception. The court did not adopt the amendment to section 90.104(1) that eliminates the need for an objection at trial to preserve an evidentiary ruling in cases where the judge made a definitive ruling on admissibility. The court is still considering that amendment.

The court's order is here.

For those who do not know the background on this sort of order, I will just say, briefly, that there is a longstanding uncertainty surrounding the legislature's adoption of rules of evidence and the extent to which the rules are substantive (and thus in the legislature's domain) or procedural (and thus in the court's domain). To temper what could otherwise be a separation of powers battle, and alleviate uncertainty in the law, when the legislature amends the Evidence Code, the court generally adopts those amendments.

Wednesday, December 15, 2004
Supreme Court: Jimmy Ryce
Does the Anders procedure for briefing apparently meritless appeals apply in cases involving Florida's Jimmy Ryce Act? Yup, said the Florida Supreme Court in this case.

Font Tales: Details Only An Appellate Attorney Could Love
I suppose by now most appellate attorneys have seen the Fifth District's order sanctioning an attorney for repeatedly using the wrong line spacing in a brief. (If not, check it out here.) I have some thoughts on this subject that I'd like to share.

In the way of a disclaimer, let me first point out that I have not contacted anyone involved in that case about it, nor have I seen the offending material(s) or the motions involved. I've just read the same order we've all seen.

That said, I'm going to guess at what happened. Or what may have happened. You see, there is a recognized debate in Florida's appellate community over line spacing. (What other group could possibly debate this?) This has gone on for four years, since the Florida Supreme Court amended Rule 9.100 (petitions) and Rule 9.210 (briefs) with respect to fonts and line spacing. Former Rule 9.210 provided that briefs should be "printed in type of no more than 10 characters per inch" and "double spaced so that there are no more than 27 lines per page." Rule 9.100 didn't address this topic. Once amended, both rules simply provided that briefs and petitions should be "double-spaced" and "submitted in either Times New Roman 14-point font or Courier New 12-point font."

For those who write too much (not me!!), these amendments were like bombs falling on the appellate landscape. Here's why.

Microsoft Word offers two different forms of line spacing. The first is a multiple of the font's printed height: single, double, triple, etc. The second is a measurement based on points, much like the font size: 10, 12, 14, 24, 28, etc. Microsoft Word will let you select any of these as the line spacing options for a particular paragraph. Attorneys tend to use Word. Florida's courts have, until recent months, exclusively used WordPerfect, which offers the same functionality but separates the functions of line height and line spacing.

For some time, the two most common fonts in word processing have been Courier and Times New Roman. These fonts have different line heights, even when the same font size is selected. Attorneys may not have noticed this technical detail, but they did notice the result: in Word, Courier 12 at "double" line spacing produces 27 lines per page, exactly what the old rule permitted. Times New Roman 12, however, produces only 23 lines per page, and Times New Roman 14 produces only 20 lines per page. Over the course of a 50-page brief, the difference between using Courier 12 and Times New Roman 12 or 14 can be significant.

Attorneys needing (or choosing) to write longer briefs didn't see that situation as presenting much of an option. They used classic Courier, double-spaced, and thus could submit a 50-page brief with 27 lines per page. Some wanted to use a more readable font, and they used Times New Roman 12 or 14 but changed the line spacing in Word to be "exactly 24-point" spacing, which produces half the number of lines that would be produced using "exactly 12-point" spacing, which is exactly the height used for single-spaced Courier 12. Some others wanted to use Courier New 12-point (for its non-proportional character spacing), and by changing the line spacing to "exactly 24-point," they too could achieve 27 lines per page. So long as the lines per page stayed at 27 or lower, and the spacing was double the height that could be used for single-spacing, everyone thought things were fine.

Then the rules changed. The 27-line limit disappeared. The rules now just said "double-spaced" and required either Courier New 12 or Times New Roman 14. The court's comments in adopting the new rules indicated that the changes were to accommodate technology, create uniformity, and prevent people from using fonts and typesetting techniques to avoid page-limit requirements. (Read the comments at pages 7-9 of this document.) The court said nothing about needing to make briefs shorter.

Yet shorter briefs was precisely the result if the new language meant that 27 lines per page were not permitted through the use of either Courier or, in Word, Courier New/Times New Roman at "exactly 24-point" spacing. In Word, Courier New 12 double-spaced produces 24 lines per page, and Times New Roman 14 double-spaced produces 20 lines per page. The difference between briefs in these formats and briefs under the classic old format -- double-spaced Courier, at 27 lines per page -- could amount to 8 to 15 pages of text. That's a lot of text.

Attorneys wondered if this change could have been what the court intended. Many thought it was not. The court made no mention of making briefs shorter, let alone that much shorter. Some speculated whether the court had any idea about how any of this worked anyway, especially since WordPerfect (which the courts all used) treated line spacing and line height as separate functions. It only made matters worse that Word Perfect printed Courier New 12 double-spaced at 25 lines per page -- which would allow one more line per page and thus two more pages per brief than selecting the exact same options in Word. Some thought page limits should not vary by which word processor is used.

Some attorneys simply accepted the new rules as being significant changes and made due. Others stuck to the formatting permitted under the old rule, on the notion that briefs clearly compliant with the old rule were not intended to be noncompliant under the new rule. Some started out in the latter category but soon changed their minds, fearing that defending the practice on paper (with an explanation like the one above) would not read well. Appellate attorneys debated this subject more than any normal person would believe.

It was with all this in mind that I read last week's order from the Fifth District. The court stated that counsel there believed his petition "was fully in compliance with the appellate rules." The court did not set forth the attorney's precise explanation for what he did. Instead, the court said:

Weeki Wachee's counsel sets forth a convoluted argument relating to the provisions of the previous rules of appellate procedure to argue why something less than standard double spacing and single spacing can be used. However, counsel's argument does not overcome the plain language of the rule.
Maybe the Fifth District's case did not involve the circumstances I described above. Maybe it did.

Third District: Religious Entanglement
This decision from the Third District presents some great constitutional and appellate points to discuss. The case is a negligence suit that arose when a number of Jehovah's Witnesses met at a member's home and, as they left to begin their day of canvassing, one Witness backed her car into another, leading to injuries. The injured woman sued the local congregation and two national entities in the greater Jehovah's Witnesses organization, all of which are incorporated companies. The trial court granted all three companies a summary judgment, and the Third District affirmed.

Here's where it gets interesting. The panel issued three different opinions.

Judge Goderich wrote the lead opinion. He concluded that resolving the issue of whether the driver was an agent of the defendant corporations would excessively entangle the courts with the Jehovah's Witnesses' religious beliefs, in violation of the First Amendment's Establishment Clause.

Judge Wells concurred, but she disagreed that resolving the agency question would result in unconstitutional religious entanglement. She explained that, under classic agency principles, the evidence in the case demonstrated only that the driver (like other Witnesses) was not an agent of, or volunteer for, the defendant companies.

Judge Green dissented. She argued that the agency issue was debatable and thus a question of fact for the jury and that no excessive entanglement would result from litigation on that issue.

Wow. The first question that leaps to mind is whether excessive entanglement exists. Two of the three judges said no, but the issue is nonetheless a fascinating one. Surely there are many persons associated with religious organizations in ways that make the former agents of the latter -- in a secularly objective sense. But is there a point at which someone's only connection to a religious institution is so theologically rooted that litigating the agency issue produces unconstitutional entanglement with religious doctrine? At some point, probably, but is this one of those cases? Great question.

Another interesting question concerning this case is whether the court's decision can be reviewed by the state supreme court. A rather large stumbling block would seem to be the complete lack of agreement among Judge Goderich and Judge Wells on the rationale for the case's result. What can the district court be said to have decided? Great appellate issues here.

Tuesday, December 14, 2004
Links Updates
I'm overdue on updating my links, that's for sure. I've started now and will be doing it more over the next few days.

One of the additions is worth a comment. It's the Florida Mediator blog, brought to you by Perry Itkin. Perry emailed me about his blog and, if I read his email correctly, he credited Abstract Appeal with inspiring his mediation-related submission to the Blogosphere. Wow. Have fun with it, Perry.

Third District: Sovereign Immunity
Here is a case that may be of interest to anyone who sues the state's agencies or municipalities. The Third District held that judgment should be entered in favor of the defendant, a county, in a case that a jury had resolved in the plaintiff's favor. The plaintiff failed to serve the Department of Insurance (now the Department of Financial Services) with process as required by subsection (7) of this statute prior to the return of the jury's verdict.

Serving DFS is necessary to invoke the limited wavier of sovereign immunity found in the statute, and the county had raised the statute as a defense in its answer.

Because the plaintiff had not cured the service problem at the time the jury returned its verdict, the county was entitled to judgment based on its defense. The appellate court rejected the plaintiff's post-verdict efforts to comply with the statute as insufficient.

Fifth District: Flying Under the Influence
Operating an aircraft while under the influence of alcohol is illegal under state law, and that law is not preempted by federal regulations governing aircrafts. So said the Fifth District in this case.

Fourth District: DUI Pleas, Certifications At Last
Longtime readers may recall this post from November 2003, where I mentioned a pair of then-recent First District decisions holding that a trial court need not inform a defendant pleading guilty to a DUI charge about the possibility of an automatic revocation of the defendant's driver's license. The cases acknowledged that a Fourth District case reached a contrary result, but the First District cases did not certify conflict with the Fourth District case because the latter was supposedly irreconcilable with existing supreme court precedent, which, in the First District's view, apparently made the Fourth District decision a nullity.

Well, in this case, the Fourth District revisited the same issue and stood by its prior decision. The court also certified a conflict.

And if one conflict certification is not enough, the Fifth District has now joined the fray with its decision in this case. The Fifth District agreed with the First District and certified conflict with the Fourth.

Fourth District: Born Alive
If you are not familiar with the "child born alive" doctrine, which allows children born alive to sue for pre-birth injuries, check out this decision from the Fourth District for an example.

Fourth District: Appropriate Times To Swear
A few weeks ago, I posted these thoughts about a recent Fourth District decision involving peremptory strikes and the practice of swearing main jury panels before selecting alternate jurors. The court has now withdrawn its original opinion and released this one in its place.

The new opinion reaches the same result. The court holds that peremptory strikes may be used to strike jurors on the main panel even if the main panel and the alternates have already been selected, and notwithstanding the trial judge's warning that counsel should not exercise backstrikes after the jury "came in." Unused peremptory challenges may be used any time before the jury is sworn.

Third District: Courtroom Closures
Is the state required to show a substantial reason for partially closing a courtroom during a witness's testimony, or a compelling reason, if the persons excluded from the courtroom are able to view and hear the proceedings through a television monitor? In this case, the Third District applied the substantial basis test.

Fourth District: Unions and Airlines
This decision from the Fourth District may be worth a look for those interested in how collective bargaining agreements may affect individual union members' statutory rights and those interested in federal preemption of state law claims against airlines.

Fifth District: Attention Rules Committee
In this decision, the Fifth District has again called for consistency between Rule 3.850 final orders, which must inform the defendant of the 30-day requirement for filing a notice of appeal, and Rule 3.800 final orders, which need not mention the appellate deadline.

Monday, December 13, 2004
New Judge: Bradford Thomas
On Thursday, Governor Bush announced the appointment of Bradford Lee Thomas to the First District.

You can read the Governor's press release here.

You can also read Martin Dyckman's rather harsh column on this appointment, other appointments, and the current appointment system in general in this column from the St. Pete Times.

U.S. Supreme Court
The United States Supreme Court has just reversed the Florida Supreme Court's decision in this 2003 case.

The case involved a defense attorney's strategic decision case to concede the client's guilt and focus on fighting for the client not to receive the death penalty. The Florida Supreme Court held that, in the absence of express permission from the client, the concession of guilt necessarily amounted to ineffective assistance of counsel. The court likened the situation to where no defense at all is presented.

The U.S. Supreme Court held that no such presumption could be made and that the standards to be applied in such a case are the classic ineffective assistance standards of Strickland v. Washington. Today's decision from the U.S. Supreme Court is available here.

Fifth District: Mind Your Line Spacing
If you are an appellate attorney, you will probably want to check out this decision released Friday by the Fifth District. The court sanctioned a party's counsel for, once again, filing a brief that used incorrect line spacing to squeeze more text into the brief than the appellate rules would ordinarily permit.

The simple point here is that when the rules call for double spacing, or for single spacing, use it. Don't use anything less. Still, I think there's a bit more to the line spacing issue. I'll discuss it in detail only an appellate lawyer could tolerate sometime in the next day, after I finish catching up on the noteworthy cases and news.

Supreme Court: No More Workers' Comp Rules
I've not yet mentioned this interesting and constitutionally significant decision that the Florida Supreme Court released on December 2. The court repealed all of its rules governing workers' compensation proceedings because the court lacks constitutional authority over such cases. Workers' compensation proceedings are handled by the executive branch, and the court has constitutional authority to create rules governing courts, not executive branch agencies.

The court's workers' compensation rules had been in existence for 31 years. For 30 of them, a statute had authorized the court to adopt rules governing workers' compensation procedures. The court held that authorization to be unconstitutional.

Second District: Criminal Paddling
I bet this case made for a few interesting news stories. An administrator at Charlotte Regional Christian Academy was charged with and convicted of felony child abuse for twice paddling a student for lying and cheating. The child's parent had signed a form consenting to the use of corporal punishment.

On appeal, the Second District held that the administrator should have been acquitted of the charge because the injuries caused by the paddling were not severe enough to support a felony child abuse conviction. The court noted, though, that the facts may have supported a charge of contributing to the dependency of a child.

First District: Supplementing The Record
This case involved an Unemployment Appeals Commission decision and an appellant who failed to include the hearing transcript in the appellate record. Among the appellant's arguments was that competent substantial evidence did not support the appeals referee's decision -- an argument that is, well, impossible to make in the absence of a transcript.

The First District broadly held that Rule 9.200(f) requires the appellate court to offer the appellant an opportunity to supplement the record with the transcript. Chief Judge Wolf explained in a partial dissent that the court's decision effectively invalidated an administrative code provision requiring a party in a UAC proceeding to order a transcript within 10 days of filing a notice of appeal. The majority acknowledged that its decision appeared to conflict with other district court decisions that found a waiver where no transcript was provided.

Second District: Equitable Tolling
For a good look at the concept of equitably tolling a statute of limitations, check out this decision from the Second District. The court reversed a judgment in favor of a whistleblower. The suit had been filed after the limitations period expired, and the issue was whether the defendants' conduct (or the defendants' attorneys' conduct) justified tolling the limitations period. Interesting case.

Second District: Jimmy Ryce
Does a defendant in a proceeding under the Jimmy Ryce Act (Florida's civil commitment for violent sexual offenders law) have a constitutional due process right to be tried only if he or she is competent? Sometimes, said the Second District in this case -- when the state intends to present hearsay evidence that is subject to dispute. The court thus reversed the order committing the appellant despite his incompetence at the time of trial. Judge Canady dissented.

First District: Bad Faith
In this case, an insurer apparently paid its insured the benefits at issue within the 60-day "cure" period provided by section 624.155, but the trial court nonetheless denied the insurer's summary judgment motion in the insured's summary judgment case. The insurer then filed a petition for a writ of certiorari from the First District, arguing irreparable harm. The First District denied the petition. While it is not clear whether the denial was based on a lack of error or the availability of relief in a final appeal, the facts set forth by the court certainly suggest the latter.

Questions, questions
If you enjoy muddling through complex sentencing issues, then here's one for you. In this case, a divided panel of the First District agreed on certifying the following to the Florida Supreme Court as a question of great public importance:


Saturday, December 11, 2004
Friday, Um, Saturday Florida Law Trivia Answer
Hunter's been known to do some good deeds this time of year. In fact, he's scheduled to play Santa at a local hospital soon. So perhaps the elves caught up with him yesterday and have him trapped in wardrobe until he's properly attired.

Meanwhile, I'm going to take a stab at answering his questions. Yes, it is unlawful in Florida to abandon or discard a refrigerator -- or freezer, clothes washer, or clothes dryer -- without removing its door. The governing statute is found here, and its purpose is to prevent children from being injured or killed by being inadvertently trapped in abandoned appliances.

As for penalties, the violation is a second degree misdemeanor (up to 60 days in prison, up to $500 fine) unless as a result of the offense a child is killed or suffers permanent physical or mental injury, in which case the crime may, in some circumstances, be a third degree felony (up to 5 years in prison, up to $5,000 fine).

I hope everyone has a great weekend. I have family visiting this weekend and so will not be posting until tomorrow night, when I have a plethora of interesting things to discuss.

Friday, December 10, 2004
The answer is out there. Unfortunately, so's Hunter. Where could he be?????

A Little Something
It's been a rough week for posting for me -- a brief in a rather complex case has been taking a long time to get itself in shape. (Can't be me, right?) Well, fortuitously, Hunter's returned for an installment of Friday Florida Law Trivia. Good guy. And a good question today, too.

Thursday, December 09, 2004
Schiavo Thoughts: Latest 2DCA Appeal
I'm finally able to post some thoughts on the latest Schiavo-related appeal, or at least the latest one in the Florida court system.

Recall that this latest round of litigation began with this motion for relief from the original judgment in this case. The original judgment determined that Terri would choose not to continue life-prolonging treatment in the form of her feeding tube, and in this new motion, the Schindlers alleged that a new event had occurred that would make Terri change her mind. The new event was this speech that Pope John Paul II gave in March, where he discussed the immorality of denying food and water (in the form of feeding tubes) to persons in persistent vegetative states.

Judge Greer denied the motion -- technically, he dismissed it -- for failing to demonstrate a colorable entitlement to relief from the original judgment. The court ruled that the Pope's latest statements were consistent with arguments the Schindlers made earlier in the case about the Catholic Church's teachings, and that, as before, there is still no religious adviser who can speak to Terri's personal religious beliefs and desires.

Judge Greer stayed the effect of his ruling until the Schindlers can complete an appeal to the Second District. That will permit Terri's feeding tube to remain in place while the appeal proceeds.

The Schindlers have now appealed, and they have filed their initial brief with the appellate court. The brief is available here.

In the brief, the Schindlers argue that they presented the trial court with a sufficient basis for relief to require fact discovery and a trial on the motion's merits. They argue that the Pope's statements represented a new Church position and one that Terri would certainly follow. They also argue that the original evidence on Terri's religious beliefs was undeveloped and that the evidence presented in the motion would confirm Terri's beliefs and desire to follow the Pope's direction.

The Schindlers also present a few constitutional arguments. They argue the trial court determined that the Pope's statements were not new and different pronouncements and in doing so delved into church law in violation of the constitutional requirement that courts avoid determining the correctness of church teachings. The Schindlers also argue that refusing to permit Terri to follow the Pope's latest statements deprives her of her constitutional right to the free exercise of her religion and violates Florida's religious freedom statutes.

Now, here's where things get really interesting. Michael Schiavo has filed a notice with the Second District indicating that he will not be filing an answer brief. That is extraordinary, given all that has happened thus far in the case. Perhaps Michael is, litigiously speaking, exhausted by what seems to be an endless stream of legal challenges by the Schindlers. Perhaps he cannot afford counsel and no one is willing to aid him without charge.

In any case, not filing a brief on the merits of an appellant's arguments is very rare. When I've seen it happen, the case usually involves an insolvent debtor, or a state agency that does not wish to defend an outrageous ruling below, or sometimes a party in a divorce action who is being forced to pay both sides' attorney's fees and who does not wish to pay for a brief in what may well be a losing appeal. This case fits none of those scenarios.

So what will come of this? Well, the only rule involved -- and I don't think it's actually a rule, more of a practice -- is that Michael and his counsel will not be permitted to participate in any oral argument. I note that the Schindlers have requested an oral argument, and the court will likely grant it as a matter of course.

It should go without saying that the court will not appreciate the absence of an answer brief, but that does not mean the court will simply rule in the Schindlers' favor. As in all cases, the court will examine the Schindlers' arguments thoroughly and will agree with them only if the court believes the law commands the result the Schindlers seek. Still, the system works best when skilled advocates present both sides' best positions and the court can weigh the merits of each view. That will not happen here.

So now we await the oral argument.

Wednesday, December 08, 2004
Schiavo Thoughts: The USSC Case
Last week, Governor Bush filed a petition for writ of certiorari with the United States Supreme Court, asking that court to reverse the Florida Supreme Court's decision that "Terri's Law" is unconstitutional.

You can read the petition here, thanks to the folks at Terri's Fight.

I'm going to take a look at what the petition says.

First, some background. The point of a petition for certiorari is not to demonstrate error in the decision being appealed. A sense of injustice in the result below is important, but the real point is to convince the court that the case is important enough, on a national basis, to justify making it one of the eighty or so that the nation's highest court will decide in any given year. The court generally prefers to rule on issues only after they have percolated a bit in numerous other cases, which lets the high court have the benefit of multiple judges' thinking on the subject. Sometimes, though, a case is so important that the court will accept it even if it is the only case to address a particular issue.

The Governor's petition is divided into two principal arguments. Both chart out whole new territory in the law, so this definitely is not a percolating-type situation. The Governor is banking on this case being singularly important in its national implications.

A significant hurdle to being accepted for review will be the need to show the court that the case involves not only important issues but important issues of federal law. After all, the U.S. Supreme Court has neither the authority nor the desire to decide whether state courts have correctly interpreted their own states' laws. The U.S. Supreme Court addresses only federal law issues, and important ones at that.

Another significant hurdle for the petition here will be to show that the issues the Governor intends to raise on the merits will leave no "independent and adequate state ground" to support the decision being appealed. Let me put that another way. The U.S. Supreme Court will not hear an appeal on one issue -- even a really important federal issue -- if a reversal on that issue will not change the result in the case because a separate, state-law based ground exists to reach the same result. In such a case, the high court's ruling would have no effect, and the court does not decide cases where its ruling would have no effect.

The first of the Governor's two points concerns the Florida court's separation of powers analysis. Recall that the Florida Supreme Court held that "Terri's Law" was unconstitutional partly because, in effect, the law simply overrode the judiciary's final conclusions regarding how Terri would exercise her right of privacy under these circumstances. The petition does not run from that characterization. Rather, the petition seems to embrace it.

In fact, if I read the petition correctly, it argues that Florida's case law permitting a judge to determine whether an incompetent person would choose to continue receiving life-prolonging medical treatment creates a conflict of interest for the judge that justifies legislative intervention, so much so that the Florida judiciary's decision to block that intervention by declaring the law unconstitutional was itself an unconstitutional act, depriving Terri of her federal rights to due process and equal protection.

Ultimately, the first point asks the high court to establish the ground rules for when, in the context of life-prolonging medical care for incompetent wards, a state's legislative and executive branches can step in and correct a life-threatening error in the state's judicial process.

The Governor's second point concerns the Florida Supreme Court's reliance on the prior litigation between Terri's parents and her husband. This point argues that not allowing the Governor to retry the factual issues in those cases deprives the Governor and Terri of due process under federal law, since the Governor was not a party to those earlier proceedings and the persons who were parties had conflicts of interest. The petition asserts that due process requires that a neutral guardian ad litem be appointed and that the many factual issues raised in the case be aired before, and decided by, a jury.

Well, those are the points. Will they convince the court of the case's national importance? Do they leave untouched any independent and adequate state law ground? I suppose we will know in the next month or two. Michael Schiavo has until January 3, 2005, to oppose the petition, though, as I mentioned last week in this post, he has the option to waive filing a response.

To Come...
I've spent most of the last two days (and nights) working on a brief, which has kept me from digging into the details of the two recent Terri Schiavo briefs I'd like to discuss. I'm working on those posts this morning. They'll be up soon.

On Being Tardy
This story from the Sun-Sentinel has me nervous. And I don't even have to be anywhere today. (other than at my office, working on a brief...)

Tuesday, December 07, 2004
Fifth District: Vehicle Ownership
If your car is titled in your name, or your name "or" your spouse's name, or your name "and" your spouse's name, can your creditor attach the property to satisfy a debt owed by you but not your spouse? Yes, yes, and no. For more, check out this decision from the Fifth District.

Fourth District: Punitive Damages
In the first Florida appellate case to consider the applicability of punitive damages in the context of the Ford/Firestone tire separation incidents, the Fourth District held in this decision that the plaintiff presented a prima facie claim for punitive damages.

Fifth Distict: Trial Court Motions
Attention pro se litigants: motions filed in state court usually need to be scheduled for hearing with the trial judge, as seen by this case from the Fifth District. Calling the clerk and asking for a ruling is not enough.

Fifth District: Double Jeopardy
Double jeopardy fans will get a kick out of this case, in which the Fifth District found no double jeopardy violation where, by statute, a DUI arrest results in an immediate driver's license suspension and a conviction for the charged DUI offense results in a further suspension, running not from the time of the arrest but from the time of the conviction.

Fourth District: Appealable Orders
Appellate attorneys may be interested in this decision from the Fourth District, which concerned the appealability of an order compelling enforcement of a settlement.

Fifth District: Eminent Domain
If a taking of land will create a flood hazard for the property owner's remaining land, should potential damage from a flood be taken into account during the condemnation proceeding, or should the actual damage be taken into account during a later inverse condemnation proceeding if flooding occurs? In this decision, the Fifth District held the danger should be accounted for in the direct taking proceeding.

Monday, December 06, 2004
Makes You Wonder
How many people who drive SUVs (and who use their vehicle to attempt to kill kids by running them over) qualify as indigent and can receive representation from the public defender's office? Apparently, at least one.

Second District: Note To Appellate Counsel in Criminal Cases
The Second District is getting a bit disturbed by appellate counsel who raise unpreserved sentencing issues on appeal, since Rule 3.800(b) is available to permit review of the issue before the appellate briefing takes place. In this decision from Friday, Chief Judge Altenbernd included the following statement:

We take this opportunity to remind all appellate counsel that it is an exercise in futility to brief sentencing issues if the issues have not been properly preserved. Since January 2000, appellate counsel have had the procedures set forth in rule 3.800(b)(2) available to ensure that sentencing issues are properly preserved before they are presented to the appellate court. Nevertheless, this court continues to review cases like this one where unpreserved sentencing errors, some with apparent merit, are argued on appeal. This is a waste of the attorney’s time and the court’s resources. It may constitute ineffective assistance of appellate counsel, and it leaves the defendant to his own resources to seek a pro se postconviction motion to correct what may be an illegal or unlawful sentence.
(citations omitted).

Fourth District: Hospital Liability for Doctors' Financial Insecurity
Traditionally, most doctors with staff privileges at hospitals are independent contractors, and a hospital is not liable for staff physicians' negligence. However, with tort reform placing limits on what some plaintiffs can recover from doctors, and with rising medical malpractice insurance rates causing some doctors to carry less or no coverage, it is no surprise to see litigation percolating that seeks to establish theories to recover from hospitals for a doctor's negligence.

In that connection, I mention this decision issued last week by the Fourth District. The majority opinion creates a conflict among the districts over whether a strict liability cause of action exists against hospitals for failing to ensure that their staff physicians carry the minimal levels of malpractice insurance required by section 458.320. That conflict is enough to create a very interesting issue for the state supreme court, but there's more here.

To begin, Chief Judge Farmer penned an interesting special concurrence arguing that no statutory cause of action exists at all (based on strict liability or otherwise) against hospitals for failing to ensure their doctors satisfy the state's financial responsibility requirements. It would be nice to see the Florida Supreme Court speak to the conditions under which the judiciary can, if ever, properly infer the existence of a private right of action in favor of a class of plaintiffs where the governing statutes do not expressly impose even a duty on the defendant. The situation here is a good example: section 458.320 does not expressly place any duty on hospitals, but muliple district courts have held that hospitals can be sued under the statute for failing to ensure that doctors carry the minimal insurance levels set by the statute.

The other interesting angle in this case concerns how the hospital can breach the supposedly implied statutory duty of section 458.320. The Fourth District's opinion includes a quote from the trial judge's decision that makes it appear the hospital could be liable for a doctor's negligence anytime the doctor practices medicine within the hospital without the requisite coverage. In other words, the hospital not only has a duty to ensure each doctor's compliance with the financial responsibility laws but perhaps has to monitor that compliance each time the doctor visits the hospital. Wow.

I can hear the hum of amicus briefs being drafted now...

Second District: Time Of The Essence Clauses
For a discussion on what these common provisions mean, and how they might be waived, check out this decision from the Second District.

Second District: Proposed Orders and Judgments
If you are collecting case law addressing the situation where a trial judge simply adopts, verbatim, a proposed order or judgment without giving the other side an opportunity to comment, then you should check out this recent decision from the Second District.

Second District: Vacating Defaults
If you have an interest in vacating a default judgment, you should definitely check out this decision from the Second District. Through majority, concurring, and dissenting opinions, the court directly or indirectly addressed a number of issues, including a rather short "rule of thumb" time frame for moving to set a default aside, whether a "gross abuse of discretion" requires more than an abuse of discretion, and whether placing opposing counsel on notice of an intent to file the motion is itself meaningful.

On its face, the case may conflict with a Fifth District decision on whether a "gross abuse of discretion" -- the standard for reversing a trial court's ruling on a motion to set aside a default -- requires something more than an abuse of discretion. Theoretically, the case may also conflict with other districts on the elusive and pliable concept of a "rule of thumb" time limit for filing the motion. So perhaps higher review will occur here.

I attended part of workshop in Tallahassee last week that The Florida Bar puts on for news reporters to help them in covering legal stories. Very interesting. It's a shame Florida never has any good legal stories worth covering, 'cause those folks looked eager and ready to go...

Which reminds me, I haven't posted since Friday. Time to get to it.

Friday, December 03, 2004
Schiavo Mail: U.S. Supreme Court Practice
A reader spotted this line in an Orlando Sentinel story about Governor Bush's recently filed certiorari petition: "Attorneys for Michael Schiavo will have 30 days to respond to the Supreme Court filing, then Bush will get 15 days to answer that before the high court rules on whether to accept the case, attorneys said." The reader asked if this means that there will possibly be two full rounds of briefing in the U.S. Supreme Court.

The answer is: possibly, but we may also have no more briefs filed at all. What might be added to the line from the Sentinel is that, in the U.S. Supreme Court, the respondent (the party opposing the petitioner) does not have to file a response to a petition for writ of certiorari. The respondent can instead file a notice stating that the response is waived. While this might sound risky, it really is not. The high court will initially evaluate the case based on the petition alone. If the case at all intrigues the court, it will not simply grant the writ and hear the case. Instead, the court will request a response and, after one is filed, then decide whether to hear the case. So initially waiving a response presents little downside, and, while I won't explain this in detail, it offers the upside of getting the court to act on the petition faster.

The bottom line here is that I will not be surprised if Michael Schiavo waives a response. That is commonly done in the U.S. Supreme Court. There is no comparable practice in Florida's appellate courts, though that does not mean it never happens. More on this later...

Second District: No Federal Copyrights For Property Appraisers
On Wednesday, the Second District released this significant decision, which held that Florida's property appraisers cannot claim federal copyrights for Geographic Information Systems (GIS) maps the property appraisers create.

The case involved Collier County's appraiser, who required all persons seeking copies of his office's GIS maps to sign a licensing agreement that provided for payment of royalties if the maps were used for commercial purposes. A company using public records requests to acquire the maps for commercial purposes challenged the license requirement, and the appraiser defended his practice by asserting a federal copyright for the materials. The Second District held that because no Florida law empowers property appraisers to claim copyrights for their works, no copyright could exist here. The licensing agreement requirement was thus invalid.

The decision included a brief but strong discussion of Florida's long history of permitting the public open access to official records.

First District: Privilege Log Conflict?
You may recall this recent Abstract Appeal post, which discussed this recent Fifth District decision on when the failure to produce a privilege log amounts to a waiver of otherwise applicable privileges. That decision was helpful because it gave some sense of the standards to be applied when determining if a waiver exists, and it rejected the notion that a mere failure to produce a log within the time for responding to production requests amounts to a waiver.

By comparison, this decision released Wednesday by the First District simply stated that it found no error in a trial court's conclusion that a failure to produce a privilege log "as required by" Rule 1.280(b)(5) amounted to a waiver. The First District gave no details on exactly what conduct amounted to a violation of the rule. If it was merely not filing a log within the time period for responding to the production request, then this case would seem to conflict with the Fifth District's recent decision.

First District: Erroneous Standard Jury Instruction
Florida's standard jury instructions are not always correct, at least not in every application. This decision from the First District granted a criminal defendant a new trial because the trial court utilized a standard jury instruction that omitted an essential element of the charged offense. The defendant was charged with aggravated battery on a pregnant woman, but the jury was never instructed to find that the woman was, at the time of the offense, pregnant. The current standard instruction for that charge simply omits that element.

The court urged that the instruction be corrected.

First District: Workers' Compensation
This decision from the First District begins by asking, "May a claimant entitled to worker' compensation benefits under section 440.13, Florida Statutes (2001), receive a second medical opinion at the expense of the employer/carrier (E/C)?" The court's answer was yes, if the opinion is reasonable and medically necessary.

Thursday, December 02, 2004
Schiavo News: U.S. Supreme Court Appeal Filed
The Sun-Sentinel reports here that, yesterday, Governor Bush filed a petition for a writ of certiorari from the United States Supreme Court in the Terri Schiavo saga. This is the Governor's appeal of the Florida Supreme Court's decision (this one) that "Terri's Law" is unconstitutional.

I have not been able to locate a copy of the petition. When I do, I'll give some details on the argument. For now, I'll just give some general background.

The U.S. Supreme Court is authorized to hear appeals from the decisions of state courts when they involve matters of federal law, and even when they involve such issues, the high court has the discretion to take only the cases that it feels are of the greatest importance. A petition for a writ of certiorari is a request for the high court to hear a case. If the request is granted, then the parties will brief the case on its merits. Right now, the only issue being addressed is whether the court should take the case.

The primary obstacle at this point for the Governor is that the Florida Supreme Court's written decision rested entirely on Florida law and the Florida Constitution. It appears, though, that the Governor is relying on an argument that he directly, and Terri indirectly, are being denied the federal right to due process because the courts are simply accepting as true the conclusions reached in the prior litigation between Michael Schiavo and the Schindlers. Of course, the most important conclusion from that litigation is that Terri would decide not to continue receiving life-prolonging measures in the form of her feeding tube under her current circumstances. The Governor argues that he was not a party to that prior litigation and that he should be able to litigate Terri's wishes anew.

Does that argument raise a federal issue that will interest the U.S. Supreme Court? I agree with those mentioned in the Sentinel's story that the odds of the high court taking the case seem very poor, though I'd like to see the petition before saying for sure. If someone out there gets an electronic version, I would greatly appreciate if you would forward a copy to me.

Third District: Apprendi/Blakely
Those of you following the Florida impact of the United States Supreme Court's recent case law requiring juries to determine all factual elements of an offense (including sentencing factors) beyond a reasonable doubt may wish to check out this decision from the Third District.

The element at issue was the defendant's age at the time of the offense. He was required to have been over 18, and though he was over 18 as a matter of verifiable fact, the jury was not instructed on this element and the verdict form made no mention of it. Acquitted.

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

The same issue was certified in 2002 by the First District. The supreme court granted review in that case and heard oral arguments on March 6, 2003. So far, no decision. Perhaps the court will wait until the U.S. Supreme Court rules in this year's giant case involving an Apprendi-like challenge to the federal sentencing guidelines.

Fourth District: Criminal Dismissals
Those involved in the criminal side of legal practice may be interested in this decision from the Fourth District, which demonstrates the potential significance of failing to file a traverse.

Third District: Costs and Offers of Judgment
Can a trial court enter a costs award where a motion for costs is filed outside the 30-day period provided by Rule 1.525? A growing split in the districts turns on whether the court previously reserved jurisdiction on the issue. Check out this decision from the Third District for the latest decision in this area. The case is also noteworthy for its holding that an offer of judgment made by only one of multiple personal representatives is invalid.

Fourth District: Orders Drafted By Counsel
For the latest case disapproving of a trial judge simply adopting, verbatim, an attorney's proposed order or judgment, check out this decision from the Fourth District.

Third District: Weighing In On Jimmy Ryce
The Third District has now weighed in on one of several unsettled issues concerning Florida's sexual predator law, the Jimmy Ryce Act. On the question of whether the jury must be instructed that the state must prove the defendant has serious difficulty controlling his or her behavior, the court held in this case that the answer is no. The court also certified the same question of great public importance in this regard that other districts have certified and which is pending before the state supreme court.

Schiavo Mail
A reader asked me to clarify how long Governor Bush has to ask the United States Supreme Court to review the Florida Supreme Court's decision declaring "Terri's Law" unconstitutional.

By my calculation, the answer is January 19, 2005. The deadline is a 90-day period, and the time runs from the date the Florida court denied rehearing in the case, which was October 21, 2004.

Wednesday, December 01, 2004
Legal Trouble
Last week, in this post, I mentioned a news story about an incompetent man whose wife tried to overcome his living will. The story, available here from the Orlando Sentinel, recited the facts in a way that made it seem the wife's claim was simply based on her perceptions of her husband's condition -- she thinks he's cognizant but trapped in an unresponsive body, while his doctors and perhaps everyone else disagree. My post discussed these aspects of the case.

After publishing the post, a long-time reader of Abstract Appeal wrote me and accused me of ignoring the real issue in the case -- the durable power of attorney the husband had given the wife regarding medical matters. That caught me a bit by surprise, since the story said nothing about any power of attorney. The reader then referred me to this story in the Miami Herald, which explained that, indeed, there was a durable power of attorney and that a large focus of the case was the legal issue of which document was the controlling one: the husband's living will, which supposedly said he did not want to receive the sort of medical treatment he is receiving now under circumstances like he's experiencing now, or the durable power of attorney, which supposedly empowered his wife to make decisions about his medical care.

That's a very interesting issue. Based on the reported facts, the trial judge's decision to follow the living will seems difficult to challenge. After all, both documents were executed at the same time, and reading the durable power of attorney to supercede the living will entirely nullifies the living will, whereas reading the living will to be a very narrow exception to an otherwise broad durable power of attorney gives effect to both documents.

Equally interesting, though, is the significant turn the story takes when the power of attorney issue is reported. This was not simply a distraught wife clinging to a unique view of her husband's competency -- this was also a woman with a legal document designating her to be her husband's decisionmaker for medical purposes. Big difference.

A durable power of attorney is a lot like a guardianship, only without most of the legal strings guardianships entail. To learn more about these documents, check out this Florida statute.

Schiavo News: Mandate Re-Issued & Second District Brief Filed
Recall that, in late September, the Florida Supreme Court released this decision declaring "Terri's Law" unconstitutional under Florida's Constitution. After Florida's high court denied Governor Bush's motion for rehearing, the court issued its mandate, which officially ended the proceeding in that court. Immediately thereafter, though, Governor Bush filed this motion, which asked the court to recall its mandate and stay its re-issuance while the Governor pursues an appeal in the United States Supreme Court. The Florida Supreme Court granted that motion, recalled its mandate, and ordered that re-issuance of the mandate would be stayed until November 30, 2004, unless the United States Supreme Court issued a further stay in the case.

Well, November 30 has now come and gone, and the U.S. Supreme Court has not issued any further stay in the case. So, yesterday, the clerk of the Florida Supreme Court re-issued the mandate in the case. "Terri's Law" is now formally and finally declared unconstitutional as far as Florida's judiciary is concerned. You can read the new mandate here.

What's a bit strange here is that -- by all appearances -- the Governor's counsel has not yet requested a stay or filed a petition asking the U.S. high court to review the Florida Supreme Court's decision. The Governor's October 22 motion indicated that a petition would be filed within 15 days.

What happened? I don't know. My only guess is that the exigencies that prompted the Governor's prior expressions of urgency have subsided. Remember, at the time the motion was filed, Michael Schiavo's attorneys were talking about having Terri's feeding tube removed immediately. Since that time, in the separate guardianship case, Judge Greer has denied the Schindlers' latest motion for relief from the original decision to remove the tube (a motion based on this speech given by Pope John Paul II earlier this year) but has stayed that decision, and the tube's withdrawal, until the Schindlers can complete their appeal of the decision in the Second District. You can read Judge Greer's order denying the latest motion for relief here, and you can read Judge Greer's latest stay order here.

So where does that leave things? The matter is over in the Florida Supreme Court, though the Governor still has plenty of time in which to file a petition seeking review with the U.S. Supreme Court. The stay he previously sought has, in effect, been granted by the guardianship court proceedings. In fact, the guardianship court's stay may be more beneficial to the Governor than the stay he requested from the Florida Supreme Court. Any outright denial of a petition for review would probably occur in the next couple of months, and if the U.S. Supreme Court were to take the case, a decision on the merits could quite possibly be reached before the high court's term ends in June. The appeal in the guardianship case, on the other hand, could easily take much longer. So in a comparison of worst case scenarios for the Governor's position, the status quo is rather good.

Peeking around at the news, I see that the AP reports here that the Governor still intends to appeal the Florida Supreme Court's decision.

Finally, I also see that Terri's parents have filed their initial brief in their appeal to the Second District. You can read it here. I'll have more on this later.

Questions, questions
Last week, just before the holiday break, the Third District released this decision, wherein the court joined the Second District in certifying the following to the Florida Supreme Court as a question of great public importance:

The Third District's decision is literally noteworthy for another reason: it contains a three-page footnote. That would seem to create a tie in this year's longest footnote event with the Eleventh Circuit decision discussed in this prior post.

Three-Hour School Days
Three-hour school days might be okay, lawmakers suggest in this story in today's Tallahassee Democrat. The story concerns pre-kindergarten.

You may recall that, in 2002, Florida's voters passed a citizens'-sponsored constitutional amendment to require the state to provide "every four-year old child in Florida" with "a high quality pre-kindergarten learning opportunity." To read the details, check out subsections (b) and (c) of Article IX, section 1 of the Florida Constitution.

Learned: A Little Humidity Is A Good Thing
I am back in warm, soon-to-be sunny St. Pete, and boy does it feel good. I snuck away there for what was, now that I think about it, my first true vacation in years. Debbie and I made some last minute plans and headed out to Las Vegas, where we lost every cent we gambled -- all seven dollars' worth. (I suppose it's safe to say we're not gamblers.) We did tour the sites at nearly every major hotel in town, and we had some wonderful days visiting Hoover Dam and the Grand Canyon, marvels that left me astonished but incommunicado. Not to mention cold and dry.

Many thanks to those who stopped by this web log in my absence. It's time to get back to blogging, and to a number of other things, including responding to some email. It's great to be back.

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