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Thursday, June 30, 2005
Slots Saga
Today's Sun-Sentinel has this story on the "automatic stay" that took effect when the state's attorney appealed last week's trial court decision that, beginning July 1, Broward County's pari-mutuels are authorized to operate slot machines.

The story indicates that the pari-mutuels question "if an automatic stay should be applied in this case."

Hmmm. Well, by rule in Florida, an order is automatically stayed as to a Florida government entity or person where that entity or person appeals that order. That said, are the Broward County pari-mutuels authorized to operate slots solely by Judge Moe's order, or is there another authorization source, such as the text of this state constitutional amendment that Florida voters approved last year and the Broward County vote earlier this year approving the use of slots at Broward pari-mutuels?

Perhaps such things are just academic. The story indicates the pari-mutuels have announced they will not begin installing slots until regulations are in place. And that doesn't appear imminent.

Wednesday, June 29, 2005
First District: Negligent FDLE Testing?
This decision from the First District concerned a man's ability to sue state officials for negligently conducting a test that falsely implicated him in a criminal investigation, costing him his job. A DNA test was at issue, and based on precedent approving a claim for negligent infectious disease testing for cattle, the court held the plaintiff stated a cause of action against FDLE for negligent testing and reporting.

Judge Thomas authored a special concurrence that, like the two-judge majority, accepted the court's cattle case as binding precedent, but Judge Thomas nonetheless questioned the correctness of the result. Specifically, he questioned whether FDLE owes any common law duty to persons who are the subject of DNA testing. After a thorough look at the question, Judge Thomas concluded the answer should be no. He also indicated that the court's decision "establishes that law enforcement agencies are liable for inaccurate analysis of DNA and . . . any other similar analysis, such as fingerprints, blood types, and other physical evidence."

That seems like significant exposure for Florida's investigators. Yet perhaps the case's consequences are not yet settled. Judge Thomas's concurrence may prompt further action by the court.

In any event, I'm curious about something. Both the prior decision and the current decision involved scientific testing by state officials, but whereas the allegedly false positives in this case resulted in the plaintiff's termination from his employment, the allegedly false positives in the earlier case resulted in the destruction of the plaintiff's property -- his cattle. Negligence traditionally protects one's interest in property. If the cattle case was predicated on a recognized tort duty not to harm another's property, is it really controlling in the context of a criminal investigation, particularly where the consequence was employment-related?

Third District: Deadly Weapons
If a person beats another's head into a cement pillar wall, can the wall be considered a deadly weapon and the person prosecuted for aggravated battery with a deadly weapon? I suspect you know the answer, which the Third District explained here.

Tuesday, June 28, 2005
Understanding Grokster
I'm going to take an ounce of credit. Not much, just an ounce.

The parties in the MGM v. Grokster case decided yesterday by the U.S. Supreme Court argued two divergent theories of how the country's copyright laws should operate, neither of which was true to the purposes of the copyright system. On behalf of IEEE-USA, the national arm of an international society of engineers, I and others at Carlton Fields filed an amicus brief that charted a highly reasonable, legally accurate middle course for the high court to take.

And that's precisely the course a unanimous court took yesterday.

Dozens of amici filed briefs in the case. In the end, only a handful proposed a theory along the lines IEEE-USA did. We share in this victory.

And it's the right result. Here's a quick outline of why, for those who may not have paid much attention to what sounds like an arcane legal issue but is one that can affect the techology we all enjoy.

Most people surfing the Internet probably realize that any audio or video can be stored in digital format, in a computer file. Whereas it used to be near impossible for someone to buy a record and make equivalent quality copies, it takes literally a click's worth of trouble to duplicate a computer file. If the contents of that file are copyrighted, as they are with most commercial music, each copy may constitute a violation of federal copyright law. The person making the copy may be a criminal.

Generally speaking, file-sharing services are companies that utilize the Internet to set up informal networks of computer users who can make their computer files (in many cases, their computer-stored music libraries) available to others on the network. They can share files. Almost instantly. For free.

The recording industry faces high practical hurdles in pursuing individuals who copy song files in violation of the copyright laws. So the industry has taken a more broad approach and sued the file-sharing services that make massive Internet-based copying possible.

The legal issue that arose from these suits is when file-sharing services will be liable for copying performed not by them but by individual service users.

The recording industry has attempted to place liability on the file-sharing services whenever the services do not take "reasonable" steps to prevent users from copying copyrighted materials. One federal circuit court -- the Seventh Circuit -- agreed with that approach, which invites a case-by-case examination of what's reasonable.

The file-sharing industry has argued that so long as it uses a technology capable of legitimate uses, industry members can only be liable for users' illegitimate uses if the industry materially participates in or is aware of specific illegal activity. One federal court -- the Ninth Circuit -- agreed with that approach, which effectively immunizes those providing technologies capable of unlawful uses so long as those providers do not become actively involved in or aware of specific infringement.

For reasons detailed in our amicus brief, neither of those approaches achieves the balance of interests that the American copyright system was intended to promote: maximizing the incentives for technological innovation while protecting those who own copyrighted works.

If the recording industry's view prevailed, we could see the elimination of the sort of technologies that brought us VCRs, DVD recorders, iPods, and a host of computerized gizmos and programs. The technological progress we have seen in the last 25 years could be substantially halted.

At the same time, if the file-sharing industry's view prevailed, the incentive to create copyrighted works -- legal protection for your creation -- would be substantially diminished. Owners of copyrighted materials would in essence be helpless to stop the rampant copying of their creations.

So what was the solution? We proposed a historically rooted rule that examines whether the file-sharing company (or any defendant) induces others to commit copyright violations. Industry insiders refer to this as "inducement" theory. In short, if a person actively encourages another to violate the copyright laws, then the encourager can be responsible for the violator's actions. The question becomes simply whether encouragement has occurred. In this case, did the Grokster file-sharing service actively encourage its users to share, unlawfully, copyrighted materials?

If that sounds like an obvious solution, well, perhaps it is. And perhaps that's why all nine justices yesterday adopted that theory as the law:

[T]he inducement rule, too, is a sensible one for copyright. We adopt it here, holding that one who distributes a device with the object of promoting its use to infringe copyright, as shown by clear expression or other affirmative steps taken to foster infringement, is liable for the resulting acts of infringement by third parties.

An excellent decision. Neither party really "won" because neither got what it wanted, but the system achieved a significant victory.

Congrats to IEEE-USA. They seem quite pleased.

Monday, June 27, 2005
Supreme Ending
Today's a giant day in Washington, as the U.S. Supreme Court is scheduled to wrap up its term with the release of some very significant decisions. The Establishment Clause cases will probably garner the most attention, and I can't wait to read them, but the case most on my mind is Grokster -- the file-sharing case out of the Ninth Circuit.

While many people's eyes glaze over when they hear terms like "file-sharing," the assumption that this case's scope is limited to some dubious activity only kids engage in is incorrect. This decision will likely affect everyone by influencing what technologies will be commercially available to us. CDs, DVDs, MP3s, I-Pods, computers -- you name it: if it involves a copyrighted work, it may be affected by this case.

Florida Supreme Court: Law Enforcement Clothing
Does anyone remember the first case I blogged at Abstract Appeal? It was this decision by the Third District. The court declared unconstitutional section 843.085(1), which prohibits wearing certain indicia of law enforcement.

Last week, in this case, the Florida Supreme Court approved that result. A 5-2 court held that the statute is overbroad, vague, and violates substantive due process because it criminalizes conduct involving no intent to deceive the public and does not give fair notice of the entire range of prohibited conduct.

So the next time you see your 16-year-old neighbor on a street corner wearing a shirt that says "POLICE," and you find yourself asking, "Can he do that?" -- the answer's yes. At least until the law is amended.

First District: Police Deception
How much trickery may police detectives employ without crossing the limits of due process? Test your own reaction to this scenario:

While questioning him about a possible probation violation, a police investigator tells a man he is suspected in a grocery store burglary and requests a saliva sample. The man obliges, but there never was a grocery store burglary. The police wanted the sample to investigate a sexual assault. The sample exonerated the man. Nonetheless, when the police later tested the sample against blood found at the scene of a gift shop robbery, they found a match. The man was arrested for the robbery, and he moved to exclude the saliva evidence and test results, claiming the detective's deceptive tactics vitiated the man's consent.

Those are the basic facts underlying this case, where a divided First District affirmed the trial court's rejection of the defendant's motion to suppress. The court used some noteworthy language:

Deception does not negate consent. Absent coercion, threats or misrepresentation of authority, the courts have long recognized deception as a viable and proper tool of police investigation.

This court will not follow State v. McCord, 833 So. 2d 828 (Fla. 4th DCA 2002). In McCord the court equated deception with coercion. There is no threat of force or other compulsion involved in deception. To the contrary, the use of subterfuge avoids coercion which by its nature is overt and direct. The notion that deception is somehow morally reprehensible when practiced by the police in fighting crime unfairly impugns the motives of those seeking to uphold the law. Schneckloth v. Bustamonte, 412 U.S. 218 (1973) does not hold otherwise. In addressing the obtaining of consent the court specifically couches its test in terms of coercion and force, not deception. Because a suspect is outsmarted by police does not mean the suspect somehow loses the will to refuse consent.
(some citations omitted).

Needless to say, the court certified conflict with McCord.

Also, for those wondering if there was really a search here for which consent was required, check out footnote 2 of the majority's opinion.

Proposals for Settlement
Those following the ever-expanding body of case law on proposals of settlement may wish to check out two recent decisions.

First, in this case, the Florida Supreme Court resolved a conflict in the districts over whether a proposal must be apportioned between directly and vicariously liable parties. Yes, it must.

Also, in this case, the Second District held a proposal valid though it did not directly mention how a request for injunctive relief should be resolved. The court found the proposal's stated intent to resolve all pending claims encompassed the claim for injunctive relief.

Second District: Failure To Prosecute
If more than one year passes without record activity after a jury returns a verdict in a case, can the case be dismissed for lack of prosecution? No, said the Second District in this decision. That result is consistent with the body of case law distinguishing between times when action is required by a party and times when action is required by the court.

Second District: Fundamental Error
In a concurring opinion in this case, Chief Judge Altenbernd raised the issue of whether Florida's intermediate appellate courts are correctly imposing on criminal defendants the burden of proving harm from unpreserved error.

First District: Rule 1.525 Motions
You may recall a decision issued by the Second District last year holding a motion for attorney's fees invalid because it was filed before the court entered what was ultimately the case's final judgment. You can read that decision here.

Last week, in this case, a divided panel from the First District disagreed. The First District held that the motion was timely because it was served prior to the expiration of 30 days following entry of the judgment. It did not matter that the motion was also served prior to entry of the judgment.

In the end, the issue here comes down to the meaning of the word "within" as it is used in Rule 1.525. Under the rule, a timely motion for fees is one served within 30 days of the filing of the judgment. Does that language establish a window in time for service, opening on the date of the judgment's entry and closing 30 days later, or does the rule establish merely a deadline for service -- 30 days after the judgment is filed? Hopefully our high court will tell us.

And by the way, if someone's keeping track of picayune controversies only lawyers could spot, this one might make the list.

Third District: Electric Utilities
Can an electric utility be held liable when a wire inside a metal street light fails, energizing the pole and a surrounding puddle of water, and leading to the electrocution of two children? Not when the utility did not own or maintain the pole and had no knowledge of the problem, as the Third District explained in this case.

Third District: Title Defects
What constitutes a diligent effort to clear title defects? You can find an example in this decision from the Third District, where the court reversed a judgment granting specific performance to the purchasers after a non-jury trial. The district court determined that the seller had made diligent efforts.

First District: Administrative Review
Does section 408.039(6)(b) require appellate courts to give the Agency for Health Care Administration greater deference in certificate of need cases than is ordinarily given to agency orders? No, said the First District in this.

First District: Between Apprendi and Blakely
Criminal law fans may wish to note the First District's decision in this case. The court addressed a Rule 3.850 ineffective assistance claim based on an unobjected-to departure sentence entered by the trial court for an escalating pattern of criminal activity. The sentence had been entered and affirmed after the release of Apprendi v. New Jersey but before the release of Blakely v. Washington. A majority held that Apprendi, as clarified by Blakely, controlled, and that the sentence should be vacated notwithstanding the law of the case doctrine. Judge Kahn dissented.

Second District: Magnuson-Moss Act
Those trying to make sense out of the national confusion over whether the Magnuson-Moss Warranty Act applies in the context of leased automobiles should check out this decision from the Second District. The court held that the act encompassed a lessee's warranty claim under the facts of the case. The court also viewed its decision as conflicting with a prior decision from the First District and certified conflict.

Saturday, June 25, 2005
Meeting Greetings
I had a great time at the annual meeting. The appellate folks were out in force, and the company was outstanding, as always. The bar presented some memorable speakers, and if I'm not mistaken there was a discernible theme of independence. Judicial independence, that is. Not in the sense judges should do as they please, but in the dignified, honorable sense of discerning the law based on settled methods of interpretation, and following it with steadfast confidence. I'm sure I caught that thought once or twice.

I did snap a few photos at the Appellate Section's dessert reception. Here are some samples:

Chrissy & Bob

June, Tony & Tom

Shannon & Judge Warner

Roy, Celene & Neil

John, with Corey & WC

Steve and Carole Brannock & Cindy
(with Tom in the background)

Several folks can thank me later for not posting the good ones...

Thursday, June 23, 2005
Abstract Pause
Like many of the folks who frequent this corner of the Blogosphere, I'm going to be in Orlando nearly all day today for the annual meeting of the The Florida Bar. The appellate-related meetings are mostly early today and late tonight. So I'm hitting the road.

Be back later. Perhaps with pictures...

Wednesday, June 22, 2005
Schiavo News
Today's St. Pete Times has the latest here.

Slots Slated To Start
Today's Sun-Sentinel reports here that a Broward County circuit judge has ruled he will create a regulatory framework for the slots scheduled to begin operation in the county on July 1 if the local county commission will not. Recall that the legislature did not comply with the constitution directive that it create that framework this past session.

This is a very interesting development, to say the least.

The Miami Herald also has a story on the ruling here.

Eleventh Circuit: Preservation of Error
This decision from the Eleventh Circuit should be studied by every trial lawyer.

The case involved a diversity suit in which the defendants moved to dismiss for lack of jurisdiction, arguing the parties were not truly diverse. A magistrate judge scheduled a nonevidentiary telephonic hearing on the motion. The plaintiffs responded with a request that acknowledged the magistrate judge was not going to hold an evidentiary hearing but asked that the hearing be held live. The magistrate judge denied that request and held the hearing by phone. At the hearing, the plaintiffs argued that an evidentiary hearing was not necessary but that if the magistrate judge had any doubts about the plaintiffs' position then an evidentiary hearing could be held.

The magistrate judge apparently had enough doubt in the plaintiffs' views to recommend a ruling in the defendants' favor. The district court accepted that recommendation. The plaintiffs argued to the district court that an evidentiary hearing should have been held, but the district court rejected that argument.

On appeal to the Eleventh Circuit, the plaintiffs again argued error in the failure to hold an evidentiary hearing. The Eleventh Circuit held that no error could be shown because the plaintiffs never timely requested an evidentiary hearing. They timely requested only a live argument.

I see this case as highlighting the error-correcting function of our appellate courts. If no one requested an evidentiary hearing, then the lower court committed no error in not holding one. In a sense, this is a preservation of error concern, and it's the sort of thing that appellate counsel can help focus on if they are brought into a case to support the trial team.

Fourth District: Failure To Prosecute
An attorney's misrepresentations to his or her clients that a case is proceeding when it really is not cannot establish the good cause necessary to avoid dismissal of the client's case for failure to prosecute. The Fourth District explained in this case that the result may be harsh for the parties involved but is required by the rules of civil procedure.

Tuesday, June 21, 2005
Schiavo News
Terri's ashes were buried yesterday at a cemetery in Clearwater, the St. Pete Times reports here. The plaque covering the site reads:


FEBRUARY 25, 1990

[image of a dove]


The Times has a picture and further details.

Fourth District: Arbitration
In the latest of a recent string of arbitration cases, the Fourth District held that a provision precluding an award of attorney's fees was unenforceable but severable in an unfair trade practices case.

I'm glad to see Florida's case law on arbitration taking better shape. But some additional clarification still appears needed. For instance, the agreement at issue in this case was a contract for wireless telephone services between a consumer and a large wireless communications company. It seems, well, likely that the services contract affected interstate commerce, triggering the Federal Arbitration Act, but federal law in this area holds that the validity of an allegedly void provision that is nonetheless severable should be determined by the arbitrator, not a court.

The Second District adopted that approach earlier this year in this decision, when the court held that whether an arbitration agreement validly waived statutory remedies should be determined by the arbitrator. The Second District's case also involved a statutory unfair trade practices claim.

At the moment, then, Florida law does not appear consistent on whether an arbitrator or a court should determine validity issues when questionable provisions are severable. Perhaps this will change soon.

Fourth District: Nonlawyer Hearing Officers
If a person is arrested in connection with a DUI or suspected DUI and has his or her license suspended, this statute permits the person to request a formal hearing to review the propriety of the suspension. The hearing officer "shall be authorized to administer oaths, examine witnesses and take testimony, receive relevant evidence, issue subpoenas, regulate the course and conduct of the hearing, and make a ruling on the suspension." But does the hearing officer have to be a lawyer? The Fourth District considered constitutional and statutory arguments along these lines in this case, and ultimately the court said no.

Lots of folks seem to think that legal educations and backgrounds are overrated -- that justice is merely common sense and should naturally prevail. You might wonder whether thoughts like that change when someone appears for a hearing before a judge who is not a lawyer.

Third District: Preservation of Error
Just a reminder here from the Third District that preserving a sustained objection to a closing argument requires the objecting party to request a curative instruction or move for a mistrial.

Fourth District: Paternity
In a rare decision finding the almost insurmountable presumption of legitimacy overcome, the Fourth District held in this case that a man other than the man to whom a child's mother was married at the time of conception and birth could establish paternity for the child.

Fourth District: Due Process, Drugs, and Knowledge
Due process fans will want to check out this decision from the Fourth District. The court upheld a recent legislative amendment establishing that knowledge of the illicit nature of a controlled substance is not an element of Florida's drug crimes and that a defendant may prove lack of knowledge as an affirmative defense.

Monday, June 20, 2005
Cert Granted: Arbitration
The big Florida-related news out of Washington today is that the U.S. Supreme Court has granted certiorari in Cardegna v. Buckeye Check Cashing, Inc., a Florida Supreme Court decision from this past January.

Cardegna was a 5-1 decision on whether an arbitration provision in a potentially usurious check-cashing contract should be enforced for purposes of allowing an arbitrator to decide whether the agreement is wholly or partly enforceable. There was no dispute the Federal Arbitration Act governed the case.

The five-justice majority held that whether the agreement is usurious and thus void is to be determined by a court, not an arbitrator. The majority distinguished the U.S. Supreme Court's well known Prima Paint case, where the federal supreme court held an arbitrator should resolve validity questions when an agreement's invalid provisions are severable, as being based on alleged invalidities that would render the agreement merely voidable, not void. The majority held that, under Florida law, a usurious agreement is entirely void.

Justice Cantero dissented. He argued that federal law controlled, not Florida law, and that the three federal courts that recently addressed the usury issue in the context of the Federal Arbitration Act correctly decided that an arbitrator should resolve the validity question. One of those courts was the Eleventh Circuit.

Briefing will now follow, and we can expect a decision next term.

Second District: Subtle Holiday Message
Perhaps it was a coincidence that the Second District released this decision on Friday, just before Father's Day weekend. The case concerns the termination of D.A.D.'s parental rights.


Kudos On Mirror E-Filing
Attention appellate practitioners: the move toward true e-filing in Florida continues.

Effective July 1, 2005, if you're filing materials in the Fourth District, you will want to be sure you comply with this recent administrative order from the court. The order requires briefs, petitions, responses, appendices, motions for rehearing, and transcripts to be submitted to the court by email in addition to the usual paper filing.

Acceptable formats include -- start drum roll, please -- Microsoft Word, Corel WordPerfect, and pdf. My hat's off to the court for its flexibility in permissible formats.

You might recall that, last year, the Florida Supreme Court adopted a similar mirror e-filing administrative order (you can read it here), but the high court currently requires all submissions to be in Word format.

I'm a little surprised that the Fourth District hasn't included a requirement that pdf files be word-processor generated, rather than images, to the extent possible. Scanned pdf image files of briefs can be extremely large.

Note that this mirror e-filing is required to be done on the earlier of the date of paper filing or the date of service. So if you overnight the original to the court but serve opposing counsel the day before, you have to email the document on the earlier date.

Great job by the Fourth District. Let's hope this pilot program succeeds.

Second District: Contempt
In this case, the Second District invalidated a procedure used by Polk County to incarcerate those who've not paid fines and other costs associated with criminal convictions. The practices discussed in the case are so plainly invalid that they make the case seem an anachronism.

First District: Taxing Leaseholds
The majority and dissenting opinions in this equitable ownership case will be of big interest to tax fans. The First District affirmed a decision to treat a 99-year perpetually renewable leasehold as equitably owned by the lessees.

Second District: Criminal Malpractice
In a criminal context, a prerequisite to a person's malpractice claim against his or her trial counsel is that the person have obtained relief either on direct appeal or in a postconviction proceeding. But what satisfies that requirement? Exculpation? Or just a grant of relief? The Second District has the answer here.

The case also involves, but doesn't answer, an interesting evidentiary question about whether a person who was originally represented by a public defender and who pled no contest after the original conviction was vacated can bring a malpractice claim against the public defender and keep the no contest plea out of evidence based on section 90.410. Creative, huh?

Second District: Trust Litigation Venue
Trusts and estates fans may wish to check out this recent decision from the Second District. The case concerned whether Florida was the proper venue to hear beneficiaries' claims against a trustee.

Windshield Thoughts
It looks like I'm not the only one interested in the cracked windshield problem. I spotted this column over the weekend in a few papers. And it has some nice words about this site.

Odds & Ends
This weekend, I got around to tidying a few things up around here.

I've added links to some new blogs, including the 13th Juror, a blog started by Jackie Dowd of FAMU Law School. Jackie used to coordinate statewide prosecutions at the Attorney General's office, but now she's taking her skills and offering them to the clinical program at FAMU. Enjoy the blogosphere, Jackie. It's a blast.

I pulled a few outdated links, including one to a blog that disappeared and whose address was taken over by an internet drug sales outfit. (Note to self: never give up Abstract Appeal's domain name.)

Also, the get-a-lawyer box on the right now has a popup title that tells you clicking on the box's text will take you to The Florida Bar's attorney referral page. (Someone from The Bar actually requested that, and it seemed like a good idea.)

Friday, June 17, 2005
Schiavo News: Timeline Trouble?
Michael Schiavo has recently said that he woke from the thud of Terri collapsing at 4:30 am and that he got up, examined her, and called 911. He said as much in an October 2003 interview on Larry King Live, and he apparently said it very recently to the medical examiner. Emergency services records indicate, though, that Michael called 911 at 5:40 am, not 4:40 am.

That's the story behind the Governor's new effort to investigate Michael Schiavo, an effort discussed in this article in today's St. Pete Times.

I suppose this all harkens back to the "Michael did it" theory, which continues to grow more strange. Did Michael wait 70 minutes to call? Or, over thirteen years later, did he mix up 4:30 and 5:30?

I expect we'll soon be hearing about who testified to what during the earlier trials and in deposition. I also expect we'll hear more about whether Terri could have lived if she collapsed at 4:30 am, since paramedics did not arrive until 5:52 am. The Times has already consulted one expert who says no.

Second District: Tribal Immunity
No, this has nothing to do with Survivor. It's much better.

The Second District's opinion in this case is certainly among this week's most interesting opinions. The case involves a woman who claimed she was injured at the Seminole Hard Rock Hotel & Casino Tampa when she was struck by a chair. She filed suit against the Seminole Tribe, and the tribe moved to dismiss for lack of subject matter jurisdiction based on tribal sovereign immunity. The trial court denied the motion without prejudice, allowing discovery to go forward. The tribe then sought a writ of certiorari from the Second District.

The appellate court granted the petition and held the suit should be dismissed. The court rejected the plaintiff's argument that the tribe's purchase of liability insurance amounted to a waiver of soveriegn immunity up to the liability limit.
Chief Judge Altenbernd authored a concurrence that briefly explored the awkward reality surrounding the tribe's immunity. He explained:

[T]he Seminole Tribe has created a large tourist attraction along Interstate 4 known as the Seminole "Hard Rock" Casino. It is adjacent to the State Fairgrounds and advertises itself as a hotel and casino on Orient Road in Tampa, Florida. But this casino is not legally in Florida.

The average tourist has no idea that her Florida constitutional rights to access to the courts and to trial by jury do not apply to any claims that may arise while she visits the hotel and casino. The Tribe itself does not post warnings that its tourist attraction is exempt from these basic Florida constitutional protections. In this case, the Seminole Tribe and, indirectly its commercial insurance company, are raising the jurisdictional bar to prevent judicial resolution of a relatively minor and defensible personal injury claim. However, they could raise the same bar for a serious wrongful death action.
(footnotes omitted).

He's right, of course. A person visiting the hotel or casino, which is just outside downtown Tampa, has no idea that he or she has just left Florida and the protection of its laws.

Perhaps some good signage is in order. Can't you see it? "Now Leaving Florida, Please Return Soon," quickly followed by, "Welcome Back To Florida!"

Or how about "Support Education, Save A Dollar For A Lottery Ticket."

And so on...

Florida Supreme Court: Workers' Compensation Immunity
Yesterday, the Florida Supreme Court released this decision clarifying the scope of workers' compensation immunity as it relates to a carrier. A divided court explained that late payments or "simple bad faith" do not qualify as independent torts that can survive the statutory grant of immunity but outrageous conduct can survive. The court found the carrier's conduct in the case to be wholly outrageous.

Three justices dissented on grounds the statutory immunity should have barred the workers' tort claims. The dissent emphasized that the injured worker could have availed himself of remedies in workers' compensation scheme that would have prevented or reduced the harm the worker ultimately suffered.

Eleventh Circuit: Arbitration
A tiny arbitration discussion can be found within this decision from the Eleventh Circuit. In addressing a Packers & Stockyards Act claim for unlawful unfair or discriminatory conduct, the court held that there was nothing unfair or discriminatory about a company's offers to another company to pay one rate for services if the other company signed an arbitration agreement and a lower rate otherwise.

Eleventh Circuit: Insured v. Insured
Insurance fans who enjoyed this decision released last month by Third District regarding the "insured v. insured" exclusion will likely be interested in this decision from the Eleventh Circuit. The new case concerns the same exclusion, which has gone from being virtually unmentioned in Florida law to being covered twice in a few weeks.

Thursday, June 16, 2005
Schiavo Thoughts: The Autopsy Report
The release of the Sixth Circuit medical examiner's report on Terri Schiavo's autopsy answered many questions. It also left some significant questions unanswered, and it offered one surprise. After taking some time to examine the report closely, here are my thoughts.

1. Persistent Vegetative State. In the second trial regarding Terri's medical condition, medical doctors offered by Michael, an independent specialist appointed by the court, and the trial court itself found that Terri was in a persistent vegetative state with no reasonable hope of recovery. Evidence to the contrary was rejected as not credible. The medical examiner's report explains that whether someone is in a persistent vegetative state is a clinical diagnosis that his office cannot evaluate after her death. However, the report does offer findings that are relevant to the PVS diagnosis.

a. The medical examiner from the Tenth Circuit served as a consultant neuropathologist. He found that Terri's brain was very much atrophied. It weighed half of what a normal brain would weigh and approximately 75% of what Karen Ann Quinlan's brain weighed at her death. Karen Ann Quinlan spent 10 years in a persistent vegetative state.

b. The surprise I mentioned at the start of this post concerns Terri's vision. The consultant neurologist's report finds the tissue volume loss in Terri's brain to have been worst in the bilateral occipital lobes, and the Sixth Circuit medical examiner concluded Terri suffered from cortical blindness. If I understand this correctly, she was not blind in the sense her eyes could not see, but the portion of her brain that would receive information from her retinas did not exist. I'll leave it to the physicians out there to say for sure, but it would seem that these results support the court's finding that any eye tracking Terri performed was at best reflexive and not the product of conscious thought. Her eyes could perceive light, but the portion of her brain that would process those perceptions did not exist.

2. Ability To Recover. I don't read the report as directly addressing whether Terri had the ability to recover, but in the press conference given by the medical examiner with the report's release, the medical examiner succinctly said that Terri could not recover. The damage to her brain was extensive and irreparable. This supports the trial court's decision that there was no reasonable medical probability that Terri's condition could improve to the point where she might change her mind about withdrawing the feeding tube.

3. Trauma. Of the high profile issues in the Schiavo saga, the one addressed with the greatest certainty seems to be the trauma issue. The report finds the evidence inconsistent with the notion physical trauma caused Terri's collapse or had been inflicted at the time of the collapse. The report relies on medical examinations conducted at the time, as well as observations of Terri's body at her death. The examiner's conclusion was not based on a mere lack of evidence of trauma but on evidence that was affirmatively inconsistent with trauma.

These findings provide a medical complement to what we have already seen from both the court system and law enforcement. Those who have suspected or accused Michael of abusing Terri and causing her collapse would seem to be without support.

4. Ability To Eat. The trial court concluded that Terri could not be fed orally. The medical examiner's report agreed, concluding that Terri was dependent on her feeding tube, and had she been fed sufficient food to sustain her, she certainly would have aspirated it. Without naming anyone, the report mentions caregivers' claims they had fed Terri orally at times, saying such feedings were "potentially harmful or, at least, extremely dangerous" to Terri.

5. Cause Of Collapse. A sizeable portion of the medical examiner's report is appropriately devoted to what may have caused Terri's collapse. The medical examiner rejected bulimia because the best evidence to support that theory -- very low potassium levels observed after her collapse -- could have been explained by the treatment she received to revive her. The medical examiner also rejected strangling and physical abuse, as discussed above, and found no evidence of cardiac anomalies.

People have already written me to ask whether these findings undermine the results of the 1992 malpractice trial. Recall that Michael brought malpractice claims against Terri's physicians. Terri had been trying to become pregnant, but her monthly cycles had stopped, and supposedly proper tests by those treating her could have brought the bulimic situation to light and avoided her collapse. One doctor settled and another went to trial. A jury agreed with Michael's theory and awarded damages, finding Terri partly responsible, and the case then settled for a lesser amount while it was on appeal.

I do not think the medical examiner's conclusion that insufficient evidence supports a finding of bulimia undermines the trial's result. The medical examiner did not rule out that Terri's dieting habits, such as taking pills with caffeine or drinking substantial amounts of iced tea, could have caused or contributed to her collapse. He found that the evidence that would prove or disprove such a finding had not been collected or maintained, but in the malpractice trial apparently there was little or no challenge that Terri collapsed due to her dieting habits and a low potassium level. The jury agreed Terri's dieting habits caused her collapse based on the evidence and arguments presented.

In the end, the official cause of Terri's collapse remains undetermined. It might be emphasized, though, that the cause of her collapse was not directly at issue in the litigation over whether she would want her feeding tube removed and whether some treatment might help her substantially improve to the point where she would not want the tube removed. Concerns about the cause of her collapse were injected into the feeding tube litigation in 2002 -- twelve years after the fact and after two trials on her wishes and her condition -- through claims that Michael attacked Terri and provoked the collapse. Those claims were intended to discredit Michael and cast a criminal pall over the situation, which to an extent is what happened. But one of the medical examiner's strongest findings was that the evidence is inconsistent with the notion anyone caused her collapse by beating or strangling her.

When everything is said, the medical examiner's report substantiates that the court system did its job well in handling Terri's case.

Wednesday, June 15, 2005
Schiavo News
You can find a copy of Terri Schiavo's autopsy report here. To the extent I can, I'll try to offer some insights on the legal implications of the report later today.

Schiavo News
Like many, I'll be waiting for this morning's release of the autopsy report. I'll post it as soon as I get a copy. Please feel free to send it if you get it....

Meanwhile, today's St. Pete Times has this prelude to the report's release.

Tuesday, June 14, 2005
Schiavo News
Are the autopsy results to be released tomorrow? Perhaps, according to this story at News4Jax.com.

Wal-Mart Suit
The headline for this story from the St. Pete Times reads, "Suit says missing smile cost job at Sam's Club."

Fourth District: Cracked Front View, Vol. III, Issue 1
Some of you may recall my prior "Cracked Front View" posts. They all concern the issue of whether an officer can stop a vehicle in Florida based on a windshield crack that does not present a safety problem. I've discussed these cases at length not because the legal issues are so complex and fascinating but because unlike, say, illegal narcotics, a cracked windshield is the sort of thing anyone might possess on any given day. A cracked windshield is only a kicked-up pebble away, and whether it's unlawful to drive with any crack in a windshield or only a crack that presents a safety hazard seems like the sort of issue that ought to be settled.

Unfortunately, things aren't yet settled.

Recall that, back in February, in this en banc decision from the Second District, a divided court held that any visible crack is grounds for a stop and that a 7-inch crack in the passenger side upper corner of a windshield (which posed no safety threat to the driver or others) violated Florida law. For details on that decision, check out this prior post.

In March, the Fifth District decided this case, which affirmed the denial of a suppression order on grounds the officer properly stopped the vehicle to examine a crack that may have made, and in fact did make, the vehicle unsafe for the driver or others. In this post, I pointed out that while the Fifth District never directly said so, implicit in its analysis was that the officer could properly stop the vehicle for a cracked windshield only if the crack appeared to present a safety threat. Such a rationale would conflict with the Second District's decision. The Fifth District did not cite the Second District's decision.

This past week, the Fourth District released this decision in which the court agreed with and adopted the reasoning of Judge Northcutt's dissent in the Second District's case. The Fourth District held that a stop for a cracked windshield which presented no safety hazard was an unlawful stop. The court certified conflict with the Second District. Interestingly, the court made no mention of the Fifth District's recent decision.

So where does that leave Florida's drivers who may have small cracks in their windshields? Well, if you live in the Second District's territory, any crack in your windshield may get you pulled over and ticketed. If you live in the Fourth District's territory, and in my view the Fifth District's territory, you can only be lawfully stopped for a cracked windshield if the crack presents a safety threat to the driver or others.

For a look at which counties are in which district's territory, look here.

Fourth District: Subrogation
If an insurer pays its insured for a loss caused by a third person, and the insurer then sues the tortfeasor (or the tortfeasor's carrier), is the insurer obligated to turn the proceeds of the suit over to the insured to the extent necessary to make the insured whole? No, said the Fourth District in this case. The insured did not sue the tortfeasor but instead sued the insurer, seeking to bring a class action claiming all insureds were entitled to be paid first in such situations. The trial and appellate courts held that the insured failed to state a cause of action.

Third District: Subject Matter Jurisdiction
In this dissolution case, the husband filed an interlocutory appeal related to multiple issues, including his argument the trial court lacked subject matter jurisdiction based on a court proceeding the parties were litigating in Venezuela. The Third District declined to rule on the jurisdiction argument, holding a ruling on such an issue is not appealable under the limited nonfinal review provided by Rule 9.130.

The court made no mention of whether it could construe that portion of the appeal as a petition for writ of prohibition.

On the same date, the Third District also released this decision, in which the court granted a petition for a writ of prohibition in favor of a county tax appraiser based on a lack of subject matter jurisdiction in the lower court. A property owner had filed a legal challenge to the appraiser's assessment of the subject property for 2001 but then failed to pay the assessment for 2002. Doing so, the court held, deprived the circuit court of subject matter jurisdiction to hear a challenge to the 2001 assessment.

Third District: Appellate Attorney's Fees in Insurance Cases
The Third District granted rehearing in this insurance case to acknowledge that entitlement to attorney's fees had been an issue in the appeal's third point. Thus, the court held, the appellee was entitled to "appellate attorney's fees reasonably expended in defending point III of the appeal."

Third District: Contract Interpretation
Is an ambiguous provision always construed against the drafter? Not when there is ample evidence of the parties' intent, as the Third District explained in this case.

Fourth District: Appellate Jurisdiction
Quick quiz here for appellate fans. If an unappealable nonfinal order is entered and a motion for rehearing directed to that order is granted, can the order on rehearing be appealed? Nope.

Third District: Insurance Settlements
An insured claimed that he developed a jaw disorder, TMJ, from multiple accidents and sought coverage under his automobile policy's uninsured motorist coverage. He demanded $200,000, and when the insurer did not pay he notified the insurer he intended to seek bad faith damages. Such notices trigger a 60-day safe harbor period for payment, and the insurer mailed the payments. They never arrived. When the insurer learned of this after the 60-day period expired, the insurer sent new checks. The man refused the checks as untimely. But he kept them.

The case was litigated. The insurer sought to enforce the settlement based on its timely mailing of the checks, but the trial court ruled proper payment had not been made. The case then went to trial, and the man lost. He then announced he would keep the $200,000 that had been mailed to him after the 60-day period expired. The insurer challenged that action, and the trial court ruled the man could not keep the proceeds he previously refused to accept as a settlement.

On appeal, the Third District released this decision affirming the ruling that the insured could not keep the previously rejected tender. Unfortunately, the court did not address the trial court's ruling regarding whether the original, unsuccessful tender gave rise to a binding settlement.

Fourth District: Nonrecord Evidence
In footnote 2 of this decision, the Fourth District reminds us all that briefs should neither rely on nor attach nonrecord evidence.

Fourth District: Successive Post-Conviction Motions
In this case, the Fourth District rejected the notion that the successive nature of the prisoner's motion should bar relief, since the prisoner had not previously raised the point in the appellate court.

Fourth District: Confrontation Clause
Those interested in the evolving law on the Confrontation Clause and hearsay in criminal trials may wish to check out this decision from the Fourth District.

Third District: Preservation
In a criminal case, a juror challenge is not preserved where defense counsel moves to strike a prospective juror with a peremptory challenge but then withdraws the request based on the mistaken view all available peremptory challenges have been exhausted. Nor is such a matter reviewable on direct appeal for ineffective assistance of counsel. You can read the Third District decision here.

Fourth District: Ouch
Apparently due to a scheduling error, a party's trial counsel failed to attend a pretrial conference at which trial was set for six days later. Needless to say, no one appeared for the party at trial, and the trial court subsequently rejected a motion to set aside the final judgment. On appeal, the Fourth District reversed, finding the appellant demonstrated excusable neglect and a meritorious defense. The court also had this to say about the appellee's trial counsel (who may not have been the same counsel who appeared in the appeal):

We note that this appeal, and the resulting delay, might have been avoided had appellee’s trial counsel demonstrated professionalism by calling his adversary, who failed to attend the calendar call, before the trial.
Ouch, indeed. You can read the decision here.

Monday, June 13, 2005
Schiavo Thoughts
I've been listening to the press conference held by the jurors in the Michael Jackson case and to the pundits talking about the verdict. The saddest comment I can make is that the most outrageous and unfounded commentary seems to be coming from television analysts who have legal backgrounds.

The most insightful comment I can make is based on the jurors' statements about the accuser's mother. The jurors were impressively circumspect in minding their comments about the case, but several of them did explain how they did not like the mother's body language, her finger-snapping, her pointing, her tone of voice, and her eye contact. The significance of these observations is that not a single one of them will be borne out by the trial transcript. I'm making this up for purposes of an example, but suppose the mother testified to how her son described an abusive incident to her at the same time the mother looked, sounded, or acted not credible -- the transcript will contain only the simple text of her words.

We saw something very similar with the jury in the Scott Peterson case. In their statements following the verdict, they chastised Peterson not for his words but for his body language throughout the trial. The jury found great meaning in how he held himself while seated at the defense table, how he looked, how he made facial expressions. None of those things will ever appear in a transcript.

I understand the very human tendency each of us has to believe we have the sensibility and intuition to hear a series of facts, or read a piece of testimony, and perceive who is right and who is wrong. People do it every day. It's somewhat of a survival mechanism in an impatient world. But in a legal setting, reliance on such instincts can be severely misplaced, which is why appellate courts do not attempt to reweigh decisions made concerning evidence. The appellate courts appreciate the unique perspective of the persons who actually viewed the presentation of evidence in the trial court.

I point all of this out as a way of harkening back to the saga of Terri Schiavo and the discord over the trial judge's original decision regarding Terri's wishes. If I've heard one person suggest that Michael's brother and sister-in-law should not have been believed merely because of their relationship to Michael, I've heard hundreds of people say it. Yet whether their testimony was credible is something that can only be judged by the persons who were in the courtroom and saw their testimony. That was true in the Schiavo case, and we've just seen proof of how true it was in the Jackson case.

Friday Florida Law Trivia Answer
Yes, it would be unlawful for Spanky and the gang to hold a He-Man Woman Haters Club meeting at your local elementary school, even if school officials had no idea about it. But who do you think is breaking the law here, and why might such a meeting be unlawful?

It's the gang, and the answer has nothing to do with discrimination against women. The answer lies in the fact that, if I recall the show correctly, the He-Man Woman Haters Club was invite-only, and the kids were all public school students from Miss Crabtree's class.

You see, this law generally bans invitation-only groups whose membership wholly or partly consists of students in the public K-12 schools. It also prohibits invitation-only groups from entering public K-12 school premises for purposes of soliciting recruits.

The law contains some exceptions, such as for clubs approved by school officials whose memberships are selected based on good character, good scholarship, leadership ability, and achievement. There are also specific exceptions for a number of established organizations, such as the Police Athletic League, Kiwanis, and Exchange Clubs. There's no mention of the He-Man Woman Haters Club.

So, going back to the question, it wasn't the woman-hating aspect of the club that made the meeting unlawful -- it wasn't even the meeting. It was the invite-only group's very existence, and of course if the group met on public school grounds for purposes of soliciting new members, there would be double trouble.

Eleventh Circuit: Funky Little First Amendment Case
Those who enjoy freedom of expression cases may wish to check out this decision from the Eleventh Circuit. The court considered, and rejected, a company's First Amendment-based procedural challenges after Gwinnett County, Georgia county denied the company a license to operate an adult business.

It's noteworthy that the corporate entity involved was named Zibtluda, which when spelled backwards accurately captures the corporate aim. Zibtluda operates businesses in the metropolitan Atlanta area under the name "The Love Shack." Perhaps it was the Atlanta theme that prompted Judge Pryor to explain the ordinance at issue in this way:

Establishments governed by the 2001 Ordinance include those where persons perform either fully or partially nude; where more than ten feet of floor space or five percent of net sales are derived from the sale of adult magazines, books, or movies; and adult movie theaters, minitheaters, video stores, arcades, hotels, and motels. 2001 Ordinance § 86-71. The 2001 Ordinance, in other words, regulates commercial entertainment akin to the "Huggin’ and a kissin’, dancin’ and a lovin’, wearin’ next to nothing" that the B-52s famously described as occurring in a "funky old shack." The B-52s, Love Shack, on Cosmic Thing (Reprise Records 1989).
Tin roof rusted, I suppose.

Hey, Legislature!
Here we have a case that demonstrates a significant gap in the current legal system regarding what documents in a criminal case constitute nonexempt public records. Generally, once the state turns documents from a criminal investigation over to a defendant, those materials become available to the public. But what if an investigation involved persons other than the defendant and the disclosure of the information gathered could harm invade their privacy?

The current legal framework permits witnesses to request that such materials remain nonpublic if it is necessary to protect them from imminent threats to their privacy rights. But such requests are not going to be made unless the witness actually knows what information the state possesses and acts before the information is released. Is that realistic?

In this case, which concerns the prosecution of Joseph Smith in connection with the much-publicized abduction and murder of Carlie Brucia, a trial judge ordered the nondisclosure of certain information pertaining to nonparties on grounds that disclosure would threaten the nonparties' privacy interests. The information appears to concern the nonparties' prior drug use or addiction or current medical conditions.

The St. Pete Times petitioned for a writ of certiorari, asking the Second District to quash the trial court's order, which the appellate court dutifully did. The district court determined that the trial court lacked authority to enter such an order on its own motion.

In a noteworthy concurrence, Judge Davis discussed what I'll call the Alice In Wonderland-like situation that people who likely have no idea they are about to be embarrassed by the public disclosure of information about them are expected to come forward, ahead to time, to seek the information's nondisclosure. Would someone who called a tip line in the Carlie Brucia case expect that he or she was investigated by police that personal information about him or her would make its way to the news media? Judge Davis summed the situation up well:

The rules, as correctly interpreted by the majority opinion, leave the person who needs to be present before the court to assert his or her privacy rights ignorant of this need to appear until after the disclosure has occurred. This is an injustice that needs to be addressed.
He's right. Someone who can fix this should.

Job Of A Lifetime
Congratulations are in order for Judge Pryor, whom the Senate finally confirmed on Thursday to a seat on the Eleventh Circuit. Judge Pryor's confirmation vote had been caught in the unfortunate filibuster involving several judicial nominees.

Recall that in 2004, Judge Pryor received a recess appointment from President Bush. That prompted Senator Edward Kennedy to author this letter questioning whether the appointment was made during a bona fide recess and, later, this decision by the Eleventh Circuit holding the appointment constitutional. (For a brief examination of that opinion, check out this prior post.). The U.S. Supreme Court denied certiorari to review that decision, but Justice Stevens authored an interesting opinion suggesting that the validity of the appointment could yet be reached.

I certainly hope that's not an issue any longer.

Second District: Minding Consents
Here is an example of where law and lingo can clash. A question beginning with "Do you mind if I…?" is sometimes perceived as asking, and intended to ask, "May I…?" and an affirmative answer (particularly when mixed with the right body language) is taken to mean yes, you may.

But logically, and legally, that doesn't work.

So when the police officer in this case said, "Do you mind if I search you?" and the defendant responded "Yes," the Second District held that the defendant did not consent to a search, notwithstanding the police officer's view of the conversation.

Livin' For Alimony
Do you recall the bill passed this past session on alimony? It allows courts to discontinue an alimony award where the recipient is in a supportive relationship with another and lives with that person. The Governor has now signed that bill into law.

First District: Gain-Time Challenge Venue
This decision ended a ping-pong match between two circuit courts over which court should hear a prisoner's argument over gain time. I'm not sure which reference is more interesting: the Sixth Circuit's order transferring the case "back to the circuit court from whence it came," or, responding to the Second Circuit's complaint that circuit courts cannot overrule one another, the First District's use of a "but see generally" cite to chapter 7, verse 3 of the Gospel of Matthew.

Blog Creep
Blogs continue to receive mainstream attention. In this column from yesterday's St. Pete Times, author Adam Smith examines the political blog landscape in Florida and observes, "The political blogosphere is taking off in Florida, but no one really knows yet whether it's a blip in how political journalism and communication work in Florida or the start of a dramatic change."

Dramatic change, Adam. (And by the way, this Tar Heel hopes you enjoyed your trip last week to the Southern Part of Heaven.)

Sunday, June 12, 2005
Trivia Answer...
There are a number of noteworthy cases and events to discuss tonight and in the morning. So I don't bury the trivia answer under a mound of other posts, I'm going to delay posting the answer until the morning.

I think you won't be surprised to hear that it is illegal, but I suspect you may be surprised to hear why.

Friday, June 10, 2005
Friday Florida Law Trivia!
On the theory that late is better than never, here is this week's trivia question. It's in the spirit of this week's education litigation.

Would it be unlawful for Spanky and the gang to hold a He-Man Woman Haters Club meeting at your local elementary school? What if they didn't tell anyone outside the club about the meeting?

Since it's so late, I'll post the answer over the weekend. Have a great one. And, oh yeah, thanks for stopping by.

A Million Thanks
I'm just emerging from several hours' work to peek at the blog, and, wow, Abstract Appeal logged its millionth hit this morning. I'm extremely grateful. And humbled.

I've said it before, and I mean it each time:


Bush v. Holmes: The Voucher Case Argument
By now, I'm sure most folks interested in this week's oral argument in the Bush v. Holmes litigation have either seen it or read the transcript. You've probably also read coverage on the argument from stories like this one. So how do you think it went?

Well, a number of folks wrote me quickly afterwards to ask if I was surprised at how much attention the justices paid to the Article IX, section 1 argument. The pertinent portion of that section provides:

Adequate provision shall be made by law for a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education and for the establishment, maintenance, and operation of institutions of higher learning and other public education programs that the needs of the people may require.
The parties challenging the Opportunity Scholarship Program argue this provision means the state can fund a school system consisting only of public schools, and state funds cannot be used for private schools for any reason. The state contends a free public system is required but that the legislature remains free to use state money at private schools under the right circumstances.

To answer the question about whether I was surprised: Well, yes.

In 2000, the First District rejected the Article IX, section 1 challenge, holding that nothing in the section prohibits the state from using public funds to pay for private education, particularly where the legislature finds such payments to be necessary (as in the case of failing public schools). The OSP challengers appealed that decision to the Florida Supreme Court, but the high court declined to hear the appeal. That was over four years ago -- it was only after these events that the case continued with the challenge under Article I, section 3's no-aid provision.

Also, applying the challengers' constitutional interpretations, the no-aid provision would seem to be a more narrow constraint on the legislature than Article IX, section 1. It would seem less disruptive for the high court to tell the legislature it cannot use public funds at private religious schools than to tell the legislature it cannot use public funds at private schools at all. (That said, some might look at it the other way: if private school funding is ultimately to be doomed by Article IX, section 1, then isn't it most efficient to tell the legislature that now and obviate the need to address the no-aid provision in the school context?)

As for my own views on Article IX, I'm not going to explore them here. I did that earlier this week with respect to the no-aid provision because, as I said, I and others briefed that issue on behalf of the people of Florida when the case was at the First District, and I see no harm in clarifying that I believe in the argument we presented. I will succinctly say, though, that the challengers' view of Article IX, section 1 seems somewhat constrained.

There was a time in Florida's past when the court system was openly deferential toward the legislature's interpretation of its own constitutional authority and restraints. If the legislature reached a reasonable interpretation of the provision at issue, then that interpretation was upheld. The voucher case may prove to be a good indicator of whether that view is embraced by the high court today.

I can't wait for the decision.

Abstract Pause
I didn't intend to be gone so long, but a few things came up at work that required some undivided attention the last couple days. It's finally time to post on what happened at the voucher case argument...

Tuesday, June 07, 2005
Bush v. Holmes: The Voucher Case
The voucher case being argued today at the Florida Supreme Court is both simple and complicated. Unfortunately, the case concerns vouchers, which tends to place a political cloud over the real issue, which is how the following language in the Florida Constitution should be interpreted:

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.
The quoted language is from Article I, section 3 of our constitution. It's the last sentence -- the "no-aid provision" -- that truly matters.

Florida's Opportunity Scholarship Program -- the voucher program -- was designed to encourage poorly performing schools to improve. When a school "fails" under the statutory criteria, the parents of students attending that school are given the authority to switch their children to other eligible local schools, public or private. If a private school is chosen, the parents are eligible for a voucher to cover the costs. There is no requirement that the parents choose a private school that is not religious, but there is a requirement that if a religious school is chosen, the school cannot force the student to profess specific beliefs, pray, or worship.

There is a political controversy over whether vouchers are a good idea and whether these programs work. That's not what the voucher litigation is about. It's about whether the last sentence of Article I, section 3 prohibits the state from allowing religious schools to participate as eligible private school alternatives for students in failing public schools. The legal challenge is, quite simply, that allowing voucher money to go to religious schools that teach religious doctrine amounts to improper aid within the no-aid provision's meaning. Those challenging the program would have the state prohibit religious private schools, or all private schools, from participating in the program.

But does the program violate the no-aid provision? A divided First District, sitting en banc, said yes in this decision.

I'll be frank. I disagree, and I'll acknowledge that Tom Warner and I authored the Attorney General's briefs in this case in the First District, when Tom served as Solicitor General and I served as Deputy Solicitor General. It's pretty rare that I take legal positions on this blog, but given my belief in the correctness of the briefs we wrote on behalf of the State of Florida, it seems only honest to explain the position we took.

The no-aid provision was originally added to the Florida Constitution in 1885 as part of a wave of "Blaine Amendments" added to state constitutions in the late nineteenth century. "Blaine Amendments" were the result of an anti-Catholic movement that sought to cut off the possibility that Catholic populations in local municipalities would direct public money to Catholic schools to give Catholic students an alternative to the public school system, which was dominated by Protestant religious teachings (and would be dominated by them in Florida for another 80 years).

As I see it, the purpose of the no-aid provision in Florida's constitution was to prohibit the state and its municipalities from giving money to religious institutions to support them. The critical issue is when a scheme that allows public monies to end up in religious institutions' hands violates this principle. In the First District, we argued -- correctly, I believe -- that the most accurate test for conducting this examination is the primary effect test now used by the U.S. Supreme Court to consider church-state interaction under the federal Establishment Clause. If a primary effect of the program is to benefit religious institutions, the program is unconstitutional. If the primary effects are legitimate, non-religious ones, then the program is not invalidated by the no-aid provision, even if financial benefits to a religious institution are among the program's secondary or incidental effects.

There are good reasons to utilize the primary effect test. Most importantly, it is consistent not only with the constitutional language and original purpose but with the legislature's long-standing interpretation of the constitutional provision. For decades, the state has given money to religious institutions on a religiously-neutral basis. Do you know how many churches have been restored using historic preservation funds given out on a religiously neutral basis? Lots, to the tune of millions of dollars. Do you know how many religiously affiliated private schools have received grants through religiously-neutral programs to aid minority or historically black schools? Again, lots -- to the tune of millions of dollars a year. (Check this year's budget!) Other Florida scholarship programs offer vouchers to parents who can use state funds to send their children to private schools on a religiously neutral basis, including Florida's popular Bright Futures program and the McKay Scholarship Program for students with disabilities. All of these programs -- and many more like them -- allow state funds to wind up in the hands of religious schools, but only when the religious nature of the institution is happenstance. None of these programs sets out to aid schools because they are religious.

The strongest criticism of the primary effect test is that it results in Article I, section 3 being interpreted very much like the federal Establishment and Free Exercise Clauses, despite the presence in Florida's constitution of the additional no-aid language. In other words, the no-aid provision shouldn't be meaningless. The flaw in this criticism is that it overlooks the historical development of these religious freedom provisions. The federal clauses didn't take on the meaning they hold today until the mid-twentieth century, when the U.S. Supreme Court began erecting the "wall" between church and state, and -- perhaps more importantly -- the U.S. Supreme Court did not begin applying the federal religious freedom clauses to the states (as opposed to just the federal government) until the twentieth century. So, when the no-aid provision was created in 1885, there was no reason to believe the federal religious freedom clauses already covered that principle -- they did not and would not for decades to come. Just because the federal clauses have been expanded to cover what the no-aid provision was created to cover is no reason to expand the state provision's meaning.

Ultimately, interpreting the no-aid provision in the manner I suggest ensures that the provision simply prohibits favoring religious institutions. Interpreting the no-aid provision the way the First District's majority and the OSP challengers suggest requires that the state affirmatively discriminate against religious institutions, leaving them out of programs they would otherwise be eligible to participate in based solely on the institutions' religious practices.

How will the Florida Supreme Court rule? The result will depend on the test the court settles on. If the no-aid provision prohibits public monies from being given to schools to educate students, no matter what the true aim of the program is, then the Opportunity Scholarship Program will fail, as will many similar programs. If the no-aid provision prohibits public monies from being given to schools where the primary effect is to benefit the religious institutions, then the OSP will survive. We'll just have to wait and see.

Arbitration, Arbitration
There have been two recent and related decisions concerning arbitration. They're both worth a look to anyone who utilizes arbitration agreements.

The first decision is this one from the Second District. The case concerned when a parent can bind a child to an arbitration agreement, and the trial court invalidated an agreement between a parent and a nursing home. The district court reversed, explaining that while a parent generally cannot bind a child to arbitration, exceptions exist for commonplace community and school-oriented activities and for medical services. The agreement with the nursing home fit within the medical services exception. By comparison, the case the trial court relied on concerned an arbitration agreement with an African safari touring company -- a situation that did not fit the limited exceptions to the general rule against waiving a child's right to trial.

Now consider the nursing home arbitration agreement signed by a health care proxy in this en banc decision from the Fourth District. The court held that the proxy lacked authority to sign the agreement because doing so was not a "health care decision" within the strictly defined terms of section 765.101(5). The court held that a health care proxy cannot waive the ward's right to trial by jury, waive common law remedies, or agree to modify statutory duties applicable to health care services -- all of which were part of the arbitration agreement in the case.

The Fourth District's decision also contains a very important second discussion. The court corrected some prior decisions that confused the concepts of voidness based on public policy and voidness based on unconscionability. Earlier Fourth District decisions had utilized void for public policy rationales to find agreements substantively unconscionable. The court corrected that mistaken overlap. Voidness based on public policy is entirely distinct from unconscionability, including substantive unconscionability. The former typically involves a statutory scheme that cannot be circumvented by agreement. The latter concerns agreements that are so grossly unfair that no reasonable person would ever, under any circumstances, agree to their terms.

Clearly addressing a void for public policy argument, the Fourth District held that the nursing home arbitration agreement in that case was unenforceable because the agreement required arbitration under a rules scheme that did not permit an award of consequential, punitive, or special damages unless the plaintiff proves reckless or intentional misconduct by clear and convincing evidence. The court found such waivers to compromise a nursing home resident's right to recover for negligence and undermine the statutory scheme created for the protection of nursing home residents. Significantly, the court did not address the result it would have reached if the damages limitation had applied only to punitive damages.

Abstract Mail
For most of the time between last Wednesday and yesterday, I was away from St. Pete. That made responding to mail difficult. I should be caught up soon.

Monday, June 06, 2005
Voucher Case
Tomorrow, the Florida Supreme Court will hear oral arguments in the state's appeal from the decision in Bush v. Holmes.

Recall that a divided First District, sitting en banc, declared Florida's Opportunity Scholarship Program unconstitutional under Article I, section 3 of the Florida Constitution -- Florida's no-aid provision.

Today's St. Pete Times has a story on the case here. I'll offer a number of additional thoughts on this highly significant case late today.

Schiavo News
This weekend, the St. Pete Times published this story on the last-minute abuse allegations made in the Schiavo case. It seems many of those "new" claims had previously been investigated and found to be without merit.

Fourth District: Dangerous Instrumentalities
A car is a dangerous instrumentality, which can make its owner liable for injuries negligently caused by someone in possession of the vehicle.

In Florida, a golf cart is also a dangerous instrumentality.

But what about a "go-kart" at an amusement park? Is that a dangerous instrumentality? In this case, the Fourth District said no. The "whew" you hear out there is coming from Florida's amusement park owners.

Fourth District: Employee Status
Those involved in suits against multi-layered corporate structures may be interested in this decision from the Fourth District. In a premises liability case, the court reversed a jury's decision imposing liability on a parent company based on the actions of a subsidiary's employees. The "evidence" that the employees worked for the parent company, including the unfounded testimony of a store manager, was not competent evidence.

Fourth District: Pharmacists
For an interesting review on the recent advancement of negligence claims against pharmacists, check out this decision from the Fourth District.

Friday, June 03, 2005
Trivial Break
I'm still out of town and blogging remotely. Rather than run the risk of goofing up my ability to post a trivia question and answer later today, I'm going to put Friday Florida Law Trivia on hiatus for this week. It'll be back next Friday, and it'll be a tough one.

Appellate Treat!
Appellate folks, you're indeed in for a treat.

Many moons ago, Justice Kogan and Craig Waters authored what became a seminal law review article on the operation and jurisdiction of the Florida Supreme Court.

Well, time has passed. Justice Kogan has retired, and his former law clerk Craig has become the court's Public Information Officer. And, today, we have a new, updated article. Justice Anstead and Clerk of the Supreme Court Tom Hall have teamed up with Justice Kogan and Craig to author a 2005 version of The Operation and Jurisdiction of the Supreme Court of Florida, published by the Nova Southeastern University Law Review. It's the lead article. Enjoy!

Fourth District: Spoliation
If you're a fan of products liability cases, or spoliation cases, or both, you'll likely enjoy this decision from the Fourth District.

A repairman on site at a hotel borrowed a hotel ladder, from which the repairman then accidentally fell. The repairman sued the hotel based on the ladder's condition, but the ladder was unavailable for inspection because the hotel disposed of it on the day of the accident. The trial court instructed the jury that the hotel was presumed negligent due to the ladder's destruction, though the hotel could rebut that presumption. When the jury found for the repairman, the hotel operator appealed, and the Fourth District reversed. The district court gave some insight into when a jury should be instructed on a presumption of negligence as opposed to permissible adverse inferences and held that, at most, the jury should have been instructed on adverse inferences it could draw from the ladder's destruction.

Thursday, June 02, 2005
Tax Free
Yesterday began a 12-day sales tax holiday in Florida for hurricane preparation items. For a list of qualifying items, check out this bulletin from the Department of Revenue.

Fourth District: Gun Distributor Liability
Yesterday, the Fourth District released this significant products liability decision.

Nathaniel Brazill was a suspended student who returned to his school and shot a teacher, killing him. Brazill had taken the gun he used from his grandfather's bedroom. The grandfather had inherited the gun from a deceased friend who, years earlier, had legally purchased it.

The teacher's wife brought a wrongful death suit against the company responsible for distributing that model gun. After a trial, a jury determined that the gun was not an unreasonably dangerous product but that the distributor was negligent in distributing the gun without feasible safety measures. The safety measure advocated was a lock to prevent unauthorized persons from using the gun.

The trial judge granted the distributor a judgment notwithstanding the verdict, and yesterday's decision affirmed that result. The court determined that the distributor owed no general duty to utilize reasonable safety measures for a product that was not defective. The court also refused to impose on the distributor a duty to prevent misconduct by unauthorized gun users, finding the special relationship necessary to create such a duty absent and the criminal misconduct here unforeseeable. The court suggested that the foreseeability test as it relates to duty in the products liability context does not give rise to duties but rather defines their scope.

Absent the existence of a duty to the plaintiff, there could be no negligence claim.

Great win, Tom. You can read more about this case in today's Palm Beach Post.

Third District: Preservation of Error
The lack of a transcript predicating an in limine ruling and the lack of a transcript on a significant sidebar conference were found not to preclude review of the alleged error in this decision from the Third District. Those omissions did make for an interesting discourse between the majority and the dissent. The dissenting judge was also troubled by the court reporter's correction to the closing argument transcript.

Interesting case.

First District: Rule 1.525
Just a reminder here from the First District: in the split over whether reservations of jurisdiction to award attorney's fees extend the time in which a rule 1.525 motion must be filed, the First District has sided with the Second and Fifth, and against the Third and Fourth, in holding they do not.

First District: Rehearings
Should you ever find yourself late in submitting a motion for rehearing to a district court, just think of this decision from the First District. And cross your fingers.

Abstract South
I'm an out-of-towner since yesterday, which makes blogging tough and answering email tougher. To those who've sent something in the last day, I'll respond as soon as I can.

Discussions On Abstract Appeal Are (At Best) Academic and Are Not Legal Advice. Consult an Attorney in Your Jurisdiction if You Require Legal Advice.

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