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Wednesday, November 30, 2005
Carlie Brucia News: The Photos Case
Today, the Florida Supreme Court decided that it will not hear the state's appeal regarding the media's ability to view the autopsy and crime scene photographs admitted as evidence in the Joseph Smith trial. The high court's order, available here, lifts the temporary stay the court previously entered. The media are thus immediately allowed to view the photographs, obviously subject to the demands of an ongoing trial.

You may recall that the state had attempted to appeal this decision from the Second District, which held that there is no basis to restrict the media from viewing the photographs used as evidence at trial.

Fee Fi Fo Fum
If you are looking for a good way to spend some time this morning, consider checking out the first oral argument being heard today by the Florida Supreme Court. It is a very significant case -- to lawyers. It also presents some very interesting issues that may interest anyone.

The case concerns article I, section 26 of the Florida Constitution, a new provision adopted by Florida voters in November 2004. The provision is commonly referred to as a cap on medical malpractice attorney's fees -- the fees an attorney can agree to collect from his or her client when the client recovers money due to medical negligence.

The new provision gives clients the right to keep at least 70% of the first $250,000 recovered and 90% of all money recovered over $250,000. You may recall that this proposal was one of three tit-for-tat constitutional amendment battles waged in 2004 by Florida's doctors and plaintiffs' lawyers. The plaintiffs' lawyers proposed two amendments (this one allowing patients to learn about "adverse medical incidents" involving a physician and this one creating a sort of three-strikes-and-you're-out-of-the-profession rule for medical malpractice) and the doctors proposed the fee cap amendment. Florida voters approved all three.

The fee cap amendment is controversial to the plaintiffs' bar for many reasons. First, under Rule 4-1.5 of the current Rules Regulating the Florida Bar, there are contingency fee caps applicable to most cases, not just medical malpractice cases, but the caps are lower: generally, the client can keep 60% of the first $1 million, 30% of the next $1 million, and 20% thereafter. Second, the bar rule cap is a soft cap -- those figures are just presumed to be reasonable, and an attorney and client can enter into an agreement for a higher split to the attorney if the agreement is approved by a court. Third, the amendment is perceived to make medical malpractice work largely unprofitable from the plaintiff's side. The costs of bringing a plaintiff's medical injury claim to trial in a contingency case are very high.

The amendment has also generated controversy from the medical community, but only because the new provision is being circumvented -- many Florida plaintiffs' lawyers have begun insisting that they will represent clients only if they agree to waive the amendment's fee caps.

To address the waiver issue, and on behalf of his client the Florida Medical Association, attorney (and former Chief Justice) Stephen Grimes and over 50 other attorneys filed a petition with the Florida Supreme Court asking the court to amend the bar rules to reflect the new constitutionally-based fee caps for medical malpractice cases. You can read the petition here.

You may wonder what effect a bar rule would have that the constitutional provision alone would not. The answer is simple: the bar rules directly govern the legal profession, and any potential violation of the bar rules carries the possibility of significant sanctions, including the potential loss of the license to practice law. Also, the notion that the new fee caps can be waived will carry a lot less weight if a bar rule makes no mention of waivers.

When the high court sought comments on the petition, they came in droves -- mostly from the state's plaintiffs' lawyers, who strongly objected to the proposed new rule. By my count, over 250 comments were filed. The opponents are an impressive and influential set of the state's top plaintiffs' lawyers. For samples of some of the more colorful objections, check out this one and this one.

The opponents have offered the court a plethora of reasons not to adopt the proposed rule change. I will briefly discuss them, but first I will mention that the petition route taken here by the FMA is unusual but permitted by the bar rules. Steve Grimes has been publicly candid that The Florida Bar's Board of Governors -- the usual starting point for proposed bar amendments -- is not receptive to this particular proposal. The truth behind that statement is reflected in the fact that the Board of Governors filed this opposition to the petition.

The asserted problems with the proposal include that it will prevent injured persons from obtaining competent counsel, that it fails to provide a waiver option where clients consent to waiving the caps to obtain better counsel, that it violates the constitutional principles of access to courts and equal protection, and that the new constitutional provision can be read not to apply to attorney's fees. Opponents also argue that to the extent that issues of interpretation or constitutionality exist, amending the bar rules to implement the new provision before those issues are resolved is premature.

I suspect that some of these issues will greatly interest the court. The prematurity argument is interesting, but so is where it leads: if waivers are routinely being utilized to avoid the caps, how will the cap provision ever be tested? Presumably, a plaintiff would have to agree to a cap, recover a large sum of money, sue the attorney for somehow improperly obtaining a waiver and not following the cap, and the attorney would have to defend the action (at least in part) by asserting the invalidity or inapplicability of the cap itself. That is a long road to a challenge.

The waiver issues -- whether the fee caps can be waived and whether a bar rule implementing the caps should recognize such waivers -- are also very interesting. They also seem to place the plaintiffs' bar in a peculiar position. Without going into any detail, I will note that individual plaintiffs sometimes seek to avoid agreements they made in which they waived various rights, arguing that such waivers are unenforceable because they contravene certain social policies. The argument made here by the plaintiffs' bar is that all rights can be waived so long as the waiver is knowingly, intelligently, and voluntarily made.

I am looking forward to the arguments. They should be colorful, to say the least. You can watch them live through a link available here after 9 am.

Tuesday, November 29, 2005
Brucia News: The Photos Case
The Carlie Brucia photo story is quickly becoming a long one, and in this post I am going to try to summarize it a way that is meaningful to those looking for details and those looking for an overview. Here goes.

As you probably know, Joseph Smith is on trial for the abduction and murder of 11-year-old Carlie Brucia. At the moment, a jury has found him guilty and is considering whether to recommend the death sentence. The trial has been covered nationally by Court TV and has been thoroughly reported by Florida news media.

In putting on its case against Smith, the state introduced as evidence crime scene photographs showing Carlie's body fully nude in its lower areas and partly clothed in its upper areas. Her body had been traumatized and was somewhat decomposed. The state also introduced photos from Carlie's autopsy. They show her body nude and include close-ups of injuries to her genital area as well as a maggot infestation. These descriptions of the evidence were given by the trial judge in the order you will find at pages 16-25 of this document.

In that same order, the trial judge determined that these materials were exempt from public copying and inspection because of their sensitive, sexual nature. The court relied on two statutes: section 119.071(2)(h)2 and section 406.135(3)(c).

I am abbreviating some procedural history a bit, but the short of it is that the Sarasota Herald-Tribune, the Tampa Tribune, WFLA Channel 8, and the Bradenton Herald all appealed the trial judge's order to the Second District. They argued that they, as news media, have a right under the First Amendment, Florida's constitution, and Florida's statutory public records law to view the photographs. They did not argue that they had a right to copy the photographs or publish them.

The Second District agreed with the news media. You can read that court's decision here. (Appellate folks may wish to note that the court conducted its review under rule 9.100(d), which allows for review of orders excluding the press or the public from court proceedings. Whether the standard for such review is more akin to an original certiorari proceeding or a final appeal, or a hybrid of the two, is an open issue.)

The Second District observed the well established general rights of access to materials introduced as evidence in open court. The court also characterized the interests at issue as not involving the defendant's right to a fair trial but the privacy of Carlie's family and friends -- an "unusual" sitution in the court's view, but, one might add, a sitution that is becoming rather common as the law evolves to recognize privacy interests.

The Second District rejected that section 119.071(2)(h) exempted the photographs at issue by relying on section 119.07(6), which the court explained provides that court records are publicly accessible unless they are either closed by court order or reveal the identity of a sexual offense victim. The photos at issue here do not reveal Carlie's identity, so the Second District held that chapter 119 does not exempt the photographs from disclosure.

The Second District acknowledged that section 406.135 -- adopted in the wake of Dale Earnhardt's death to keep autopsy photographs from generally being made public -- makes autopsy photographs in the hands of medical examiners exempt from disclosure, but that exemption does not apply to evidence introduced in court. That statute does, however, contain a "good cause" exception that allows a court in a criminal proceeding to determine that access to autopsy or crime scene photographs should be restricted.

With respect to the "court order" provision noted in section 119.07(6) and the "good cause" exception found in section 406.135(3)(c), the Second District held that these provisions must be read in conjunction with rule 2.051 of the Rules of Judicial Administration. That rule generally allows courts to exempt court records from public disclosure where confidentiality is required to avoid substantial injury to innocent third parties, but the confidentiality order must be no broader than necessary to protect those interests. The trial judge's order did not expressly address this narrowness requirement.

When the Second District considered the narrowness restriction, that court determined that an order restricting the press from viewing the photographs was not the least restrictive means of protecting the privacy of Carlie's family and friends, given how many people have already viewed them and how the harm to be avoided concerns the publication of the photographs, which is not at issue.

Judge Casanueva authored a concurrence that agreed with the court's opinion and added that the First Amendment's free speech and free press protections also form a basis for reversing the trial court's order insofar as it prohibits the press from inspecting the photographs.

The Second District's decision concludes by ordering that the photographs at issue be open to inspection after 1 pm yesterday unless the Florida Supreme Court entered a stay. The state immediately asked the court to certify a question of great public importance to the high court, and in this order the Second District obliged that request, certifying the following question for the state supreme court:
The state then immediately noticed its appeal to the Florida Supreme Court. You can read the notice here. The state also filed a motion to stay the Second District's decision. You can read that motion here, and you can read the supreme court's order granting that motion on a provisional basis here. The provisional grant stays the Second District's order until 5 pm on November 30 and orders the news media to file a response to the motion by 9 am today. The news media filed their response yesterday, and you can read it here.

So where does that leave everything? At the moment, the four media companies that asked to view the autopsy and crime scene photographs at issue are prohibited from doing so, but that prohibtion will be lifted at 5 pm tomorrow unless the Florida Supreme Court orders otherwise. The state is attempting to appeal the Second District's decision allowing the media to view the photos, but the Florida Supreme Court has not yet decided whether it will hear that appeal.

Monday, November 28, 2005
In The Wings...
The Brucia update post is still under construction. It's a long one, covering a bunch...

I hope everyone had an enjoyable Thanksgiving weekend. I did. I'm getting back in blogger gear and, looking over the landscape, wow is there a lot to discuss.

In particular, I'll post some thoughts later today concerning this most recent decision from the Second District. The court held that requesting members of the media must be allowed to view the Carlie Brucia autopsy photographs and videos admitted as evidence in the Joseph Smith trial unless the state supreme court enters a stay order by 1:30 pm today.

There are also some other interesting ongoings involving our state supreme court. I'll get to them, too.

Judge Farmer: A Hard Look At Rule 1.442
The Fourth District panel in this case affirmed per curiam a decision invalidating an undifferentiated offer of judgment. Judge Farmer wrote a concurrence, however, that is worth taking the time to read. It will help get your mind back up to speed after a long holiday weekend.

Judge Farmer examined the distinction between the strict construction doctrine for statutes in derogation of the common law and the interpretative guidelines for the rules of procedure. He identified a "decisional incoherence" between the Florida Supreme Court's cases utilizing relaxed standards and prejudice inquiries to examine procedural rule violations and the high court's "strict" construction cases interpreting rule 1.442.

Questioning the professed judicial view that fee-shifting is penal (given that the legislature has made fees another cost of litigation in certain cases), he identified an "unsavory and inconvenient truth" not discussed by the case law: how the ability to make offers of judgment is "functionally and unfairly one-sided" in how it benefits those being sued over those bringing suit.

Finally, Judge Farmer drew a distinction between requiring particularity in offers of judgment and determining whether a lack of particularity affected the offer's response.

Fourth District: Medical Services
If a dental assistant positioning an x-ray machine to x-ray a patient's mouth accidentally strikes the patient's face with the machine, causing injuries, has the patient been injured in the provision of medical care or services?

In this case, the Fourth District said no. The court distinguished between "setting up to perform a medical procedure and its actual performance."

I suspect that we will see this language discussed more in future cases.

Fourth District: Business Brokers
In this case, the Fourth District acknowledged that Chapter 475 appears to regulate real estate sales but held that section 475.15 regulates business brokers in transactions having nothing to do with real estate sales. The court determined that a broker's failure to obtain a license precluded the broker from enforcing a fee agreement involving the sale of an automobile dealership.

Fourth District: Voir Dire
This decision should serve as a reminder for those who do trial or appellate work about how to preserve error related to the failure to strike a prospective juror for cause and who is instead struck using a peremptory challenge. The case also points out that even if an additional peremptory is requested and denied, unless the prospective juror who would have been stricken actually participated in deliberations, any error remains harmless.

Fourth District: Income Deduction Orders
Family law fans may be interested in this decision, where the Fourth District reversed an income deduction order. The court explained that the order was entered to pay for fees from actions both parties undertook to modify child support, not to enforce or secure child support.

Fourth District: Declaratory Judgment Actions, For Damages
Declaratory judgment actions can be actions for damages, triggering application of the offer of judgment statute, as the Fourth District explained in this case.

Fourth District: Certiorari
The next time a client insists on filing a certiorari petition because a trial court ordered discovery that is sensitive and arguably irrelevant, you can show the client this decision from the Fourth District.

Fourth District: Appeals After Pleas
In this decision, the Fourth District reminds criminal defense attorneys that dispositive issues a defendant wishes to appeal after pleading guilty must be identified with particularity regarding the point being reserved.

Monday, November 21, 2005
Florida Supreme Court: Grrrrr
In this decision, the Florida Supreme Court disciplined two Ft. Lauderdale attorneys for their use of the pit bull's name and image in advertisements and their toll-free phone number, 1-800-PIT-BULL.

The decision has three remarkable qualities -- it is interesting, short, and unanimous. I recommend reading it entirely, but for those short on time the following excerpt serves as a good summary:

We conclude that attorneys Pape and Chandler ("the attorneys") violated Rules Regulating the Florida Bar 4-7.2(b)(3) and 4-7.2(b)(4) by using the image of a pit bull and displaying the term "pit bull" as part of their firm's phone number in their commercial. Further, because the use of an image of a pit bull and the phrase "pit bull" in the firm’s advertisement and logo does not assist the public in ensuring that an informed decision is made prior to the selection of the attorney, we conclude that the First Amendment does not prevent this Court from sanctioning the attorneys based on the rule violations. We determine that the appropriate sanctions for the attorneys' misconduct are public reprimands and required attendance at the Florida Bar Advertising Workshop.

More Brucia Thoughts
Also among the interesting news generated last week by the Brucia case was this decision released Thursday by the Second District. The court upheld in part and quashed in part an order by the trial court concerning the jurors in the case.

Before the trial began, the trial judge expressed concern that jurors selected to serve in the case could be subjected to influences from the public at large if the media published their names and addresses during the trial. The court entered an order that prohibited the clerk's office from releasing, and the media from publishing, the names and addresses of the jurors. The order further directed that jurors would be referenced in the courtroom only by their juror numbers, that the media could not take photographs of the jurors' faces, and that the media should have no contact with jurors during the proceedings.

Several media outlets objected, and after the order was entered they petitioned the Second District for a writ of certiorari quashing the trial court's directives. The case proceeded in the appellate court with commendable speed -- it began, was fully briefed, and concluded during the trial's two-week guilt phase.

The Second District's decision upheld portions of the trial court's order and quashed other portions. The appellate court affirmed the restriction on the clerk's office releasing jurors' names and addresses, but in light of that restriction, the court found the record unclear as to why it was also necessary to restrict the media's ability to publish jurors' names and addresses. So the court quashed the restraint on publication. The appellate court also found the restrictions on photography and contact to be overbroad -- those restrictions did not state when they would expire. The Second District ruled that those restrictions would expire at 11 pm last Friday unless the trial court entered a new order with better defined restrictions.

The decision is a worthwhile read and contains numerous observations about the interplay between the public's right of access to Florida trials and a trial court's ability to ensure a fair trial.

Brucia Thoughts
Several folks asked me last week whether the public defender's decision not to offer a closing argument in the guilt phase of the Carlie Brucia case was some sort of ruse or trick, perhaps a devious attempt to hand the defendant an ineffective assistance of counsel argument on appeal. I also heard a radio show host offering similar suggestions.

I do not agree with them. The Brucia case is indeed an interesting one. The state presented a considerable amount of evidence, from statements the defendant made to his family to DNA evidence linking the defendant to Carlie.

So why would the defense waive a closing argument? I do not claim to know for sure what happened here, having not spoken to the defense, but the most logical guess seems to involve the two-stage nature of death penalty trials.

In a non-capital case in Florida, the jury simply determines whether the defendant is guilty -- if the answer is yes, then the judge sentences the defendant under the state's sentencing guidelines. In a capital case, however, a jury finding the defendant guilty also decides whether to recommend the death penalty. In such cases, where the defendant is found guilty, the trial ultimately involves two closing arguments -- one at the end of the guilt phase, and another at the end of the penalty phase.

If defense counsel argues at the end of the guilt phase that the the defendant is not guilty, in the face of substantial evidence to the contrary, the attorney's credibility with the jury may be diminished in the later penalty phase, where the jury truly has the discretion to find the way it wishes to find. Defense counsel could reasonably believe that maximizing credibility in the penalty phase, should one occur, is the most reasonable strategy. That certainly makes a lot more sense than suggesting that waiving closing argument was an effort to manufacture error for a later appeal.

Friday, November 18, 2005
Carlie Brucia
I have a few items to post on this case, but I am out of time this morning to do so. Some noteworthy issues have been decided involving the jurors' identities and publication of Carlie Brucia's autopsy photographs and videos. Also, a few people have asked me to comment on the defense's decision on Wednesday to waive closing arguments and whether that opens any sort of appellate doors.

I will post on these things as soon as I can. For now, I am off to provide a little pro bono service: moot courting someone in a death penalty case. (Not the Brucia case...)

Florida Supreme Court: New Taxable Costs Guidelines
Yesterday, the Florida Supreme Court issued new guidelines for taxing costs in civil cases. The new guidelines create three general categories of costs: those that should be taxed, those that may be taxed, and those that should not be taxed. All cost-shifting decisions remain the trial court's discretion.

The item that caught my attention was that the costs of copies obtained in discovery is now an item that should be taxed. The prior guidelines provided that the costs of copies obtained in discovery but not filed with the court should generally not be taxed.

You can read the new guidelines here.

Third District: Arresting Teachers
If you know any teachers, ask them whether they believe they can be arrested for failing to protect a student from another person during a class. If they answer no, they don't think so, you can show them this opinion from the Third District.

The case involved section 827.03(3)(a), which makes it unlawful for a "caregiver" to fail to make "a reasonable effort to protect a child from abuse, neglect, or exploitation by another person." Section 827.01 defines a "caregiver" as "a parent, adult household member, or other person responsible for a child's welfare." The court decided that during school, a teacher qualifies as a person responsible for a child's welfare and essentially substitutes for the child's parents, standing "in loco parentis."

Therefore, when Vonda Christie's teacher's aid bound some students to their desks and a blackboard with tape, and Christie did nothing to stop it, she was arrested for child neglect without causing bodily harm, a third-degree felony. The Third District's decision allows the prosecution to go forward.

I suspect some in the academic realm will question whether the legislature truly intended to criminalize the oversights of teachers in this manner. Interesting case.

Third District: Vicarious Liability For Sexual Assaults
In this case in which a sexually assaulted woman sought to sue her assailant's employer in negligence for her injuries, the Third District considered whether "there exists in the male species a substantial, immutable flaw of the first magnitude." Finding no proof of such a flaw, and otherwise unwilling to take judicial notice of the notion, the court found the evidence insufficient to hold the employer liable for its employee's assault.

Third District: Cross-Appealing Interlocutory Orders
I am no odds maker, but I would bet that, some time soon, this case will show up on the appellate certification exam.

The Third District addressed a simple question: can there be a cross-appeal when a non-final order is appealed? The court said yes and denied a motion to dismiss the appelleee's cross-appeal. The court did not indicate whether the cross-appeal was filed during the initial 30-day appeal period or afterwards, such as the extended period that could apply in cross-appeals of final orders under rule 9.110(g).

Third District: Elections
Election law fans may be interested in this decision from the Third District. The court invalidated a non-binding "straw ballot" question because, among other things, it misled voters about its advisory nature.

You might wonder what happens when a non-binding poll is invalidated. In this case, because the opponent sought relief prior to the vote, and a court granted relief, the results were never counted.

Third District: Economic Loss
Fans of the economic loss doctrine may wish to check out this decision from the Third District. The court held that the owner of a helicopter destroyed in a crash had no tort claim for the loss against the manufacturer of the craft's engine.

Arbitration fans may note that an arbitrator awarded those losses, but the arbitration was conducted under an agreement that all issues of law could be reviewed by a court.

Third District: Trial Management
The Third District's decision in this case would appear to offer a couple of lessons. First, to trial attorneys, do not ask to have a case set on the next jury docket unless you are prepared to get what you ask. Second, to trial courts, be careful when striking witnesses without whom a party cannot present its case, since such a sanction severely punishes the party.

Third District: Class Certification
Class action fans may be interested in this decision, where the Third District reversed an order certifying a class of physicians claiming systematic downcoding by an insurer. I am not sure this strategy works very often, but the defense demonstrated that the putative class representative has no damages claim, leaving him without standing and thus an inadequate representative.

Third District: Construction Bonds
For an example of the strict compliance requirements surrounding construction liens, check out this decision from the Third District.

Third District: Canceling Insurance
Does returning a cancelled policy's unearned premium invalidate the cancellation? No, said the Third District in this case, which conflicts with an earlier Fourth District case.

Third District: Stops Outside An Officer's Jurisdiction
This case involves a traffic stop outside an officer's jurisdiction. A divided court disagreed over whether spotting a vehicle crossing a yellow line and failing to maintain a lane in one town justifies a stop 70 feet into an adjoining town.

In dissent, Judge Schwartz expressed some profound disappointment in the majority's decision that the stop was unlawful. He also expressed some debelief that Coral Gables, acknowledged as The City Beautiful, should also be The City Sober. Yet another Schwartzism.

Third District: NICA Conflict
Those interested in Florida's Birth-Related Neurological Injury Compensation Act will probably want to check out this decision from the Third District. The court certified conflict with another district over NICA's notice requirement and whether an emergency appearance at the facility excuses the requirement if the patient previously visited under non-emergent circumstances. The court held that notice was required to have been given at the earlier opportunities.

Wednesday, November 16, 2005
Beneath Underneath
Just a few words to David Lat, the now-outed author of the consequently defunct Underneath Their Robes: Good job, sir. I enjoyed the site immensely.

And just in case anyone's interested: I'm just me. Nothing shocking there, I concede.

Video Kudos to the First District
At some point back in the mid-1990s, someone decided that each of Florida's courts should establish its own Internet site, including the five district courts of appeal and the state supreme court. That decision, likely based on budget concerns, led to some interesting distinctions in how each court's site looked, what information it contained, and -- for a while -- whether each court even had an Internet site.

Much like the nation's Great Experiment, one of the benefits produced by this independent operation of Internet sites has been that some courts put ideas into action better than others. When I see something well done on a court's site, I like to point it out.

This page definitely deserves a virtual round of applause. It's the First District's brand new video page.

Some of you may recall that the First District used to broadcast oral arguments live on the Internet, but the new video page offers links not only to live video from the courtroom but also to archived videos from individual past arguments. The site explains that videos from past arguments are still being added and will eventually include cases argued since January 2004.

The archive pages are divided by year (2004, 2005) and are very well laid out. The format is chronological and the listings include case names and numbers, so searching a page if you do not know a particular argument's date is very easy. Also, for those not inclined (or allowed) to watch the sufferings of arguments past, each argument can be downloaded as video or audio-only.

Great job, 1DCA. I hope the other appellate courts follow your lead.

Felon Disenfranchisement Upheld, Again
I'd be remiss if I did not mention that, on Monday, the United States Supreme Court denied a certiorari petition filed by persons who contend that the felon disenfranchisement provision found in the Florida Constitution violates federal law.

Earlier this year, the en banc Eleventh Circuit rejected those arguments on their merits, holding that the neither the federal constitution's Equal Protection Clause nor the Voting Rights Act prohibits Florida from denying the right to vote to felons who have completed their sentences. The high court's decision on Monday ends the case -- the disenfranchisement provision may be controversial, but it has been found not to violate federal law.

Last April, I posted about the Eleventh Circuit's decision in some detail. Here's a copy of what I posted:
Yesterday, an en banc panel of the Eleventh Circuit upheld Florida's law that bans felons from voting unless their civil rights are restored. The challenge was based on equal protection principles and the federal Voting Rights Act.

Addressing the equal protection argument, the court held that the disenfranchisement law predates the ability of African Americans to vote and thus cannot have been originally created for racially discriminatory purposes. In a historically fascinating discussion, the court considered -- but rejected -- an argument that the re-adoptions of the ban in the 1868 state constitution and again in the 1968 version were racially motivated. The court then applied the general equal protection analysis and concluded that no equal protection violation existed.

In another very interesting discussion, the court rejected an argument that the ban violates the Voting Rights Act. The court concluded that Congress did not intend the Voting Rights Act to cover a state's decision to disenfranchise felons.

Ultimately, the court expressed that the wisdom of felon disenfranchisement statutes is a matter for the consideration of state legislators, not federal courts.

Judge Wilson dissented. He agreed that no equal protection violation existed but would have held the ban to violate the Voting Rights Act.

Judge Barkett also dissented. She would have held the ban invalid under both an equal protection analysis and the Voting Rights Act challenge.

You can read the en banc court's decision here.
By the way, if you try to load the Eleventh Circuit's opinion and get an error, the solution that worked for me is to open Adobe Acrobat (open some other pdf document if you can't find how to open Acrobat directly), go to the "preferences" menu, and turn OFF "allow fast web view."

Tuesday, November 15, 2005
Appellate CLE Teleconference
Appellate Practice Section members will hopefully enjoy today's installment of the section's monthly teleconference CLE program.

The program will be moderated by Chris Carlyle. Speakers will include Georgetown Law professor Steven Goldblatt and the section's own John Mills, who will discuss the Georgetown University Law Center Supreme Court Institute and how it can help prepare practitioners for oral arguments before the nation's highest court.

For information on listening to the lunchtime call, which carries 1 hour of CLE credit, look here.

Second District: Abortion By Minors, Judicial Bypass
There is much to be said about this decision from the Second District.

The case concerns the controversial subject of abortion. The central figure is a 17-year-old minor who asked a circuit court to allow her to obtain an abortion without her parents' knowledge. The circuit court said no, and she appealed.

Backing up for a moment, recall that last November, Florida voters passed a constitutional amendment creating new article 10, section 22 of the Florida Constitution, which permits the legislature to require a minor's parents to be notified before she obtains an abortion, subject to exceptions including a waiver granted by a court.

The legislature implemented this new provision earlier this year when it enacted new section 390.01114. The law permits minors to be excepted from the notification requirement under some very particular circumstances, including where the court finds clear and convincing evidence the minor is "sufficiently mature to decide whether to terminate her pregnancy" and where the court finds by a preponderance of the evidence that notification is not in the minor's best interest.

The statute provides that a petition seeking a judicial bypass will be deemed granted if it is not heard and dismissed on its merits within 48 hours. Recently, the Florida Supreme Court adopted a new Rule of Appellate Procedure that provides an order dismissing a petition for judicial bypass will be deemed reversed if the appellate court does not affirm the dismissal within 10 days.

In the case, the circuit court heard the petition and dismissed it on its merits. The minor appealed, and a divided Second District reversed.

This was apparently the first appeal heard under the new scheme -- or at least the first in the Second District. The court's majority determined that the facts set forth in the circuit court's order did not support the order's conclusions, and the court was unwilling to reweigh the facts. The majority also determined that remand for further findings was not an option in the time-sensitive, constitutionally significant context of abortions for minors.

Judge Davis dissented. Viewing the record, he agreed with the trial court that the minor failed to carry her burden of demonstrating an entitlement to a waiver of the notification requirement. He disagreed that the trial court was obliged to make detailed findings on matters that were not presented to the court.

Second District: Hospital Bylaws
If you follow hospital litigation, you may be interested in this recent case from the Second District. The decision involved a physician's right to a hearing on his reapplication for privileges to provide pain management services after the hospital entered an exclusive contract with another provider for those same services.

Second District: Lewdness
Section 796.07(2)(e) makes it unlawful to commit, offer to commit, or engage in lewdness. Police have used this statute to arrest persons at adult businesses for lewd conduct. You may have heard that some such prosecutions were derailed when courts ruled that lewd conduct must actually offend someone and that the officer making the arrest is not eligible to be an offended person.

In this case, the Second District reviewed a decision reaching that conclusion. The district court explained that the requirement someone must be offended comes from case law defining "lewd" conduct for a statute that offers no definition. Section 796.07, however, defines lewdness as any indecent or obscene act. Whether anyone, including an arresting officer, is offended is not relevant.

Interestingly, the court noted that the 2005 legislature amended the statute to provide that "a police officer may testify as an offended party in an action regarding charges filed pursuant to this section." Given the court's conclusion, this was a very interesting amendment. Perhaps it is curiously meaningless, referring to an "offended party" that need not exist. The court did not discuss any effect the amendment could have on the statute's meaning.

Second District: Drug Possession
Just a reminder here from the Second District to prosecutors: in a prosecution for possession of contraband, if you do not get the allegedly possessed material admitted as evidence, there will generally be no conviction.

Friday, November 11, 2005
First District: Pot and Precedent
No, it's not a Jane Austen novel -- it's this decision from the First District. The court reversed a judgment against a plaintiff in a medical malpractice case based on the introduction of evidence the plaintiff used marijuana to treat her pain. The defense elicited testimony the drug's use could have an impact on how physicians treat her, but nothing showed that the drug use affected the plaintiff's injury, treatment, or recovery in this particular case. The appellate court concluded that the drug use evidence should have been excluded.

Also noteworthy about the case is its discussion of how a prior decision from the First District could not serve as contrary authority based on facts not set forth in the prior opinion. Fittingly, the court relied on ample precedent to explain this point.

Nice win, Tracy.

First District: Appellate Procedure
Here's a question I can see on the appellate certification exam: does the addition of the post-judgment interest rate to a previously entered order awarding attorney's fees restart the clock for taking an appeal of the order?

You can find the answer here.

First District: Culpable Negligence
This case really interested me.

A psychiatric technician at a mental health facility in Penscacola was tasked with (1) monitoring a patient on suicide watch every 15 minutes and (2) continuously watching a dangerous patient kept in an unlocked room. These competing duties were apparently the result of the facility being one technician short on the day at issue. The technician chose to watch the dangerous patient during his shift and monitor only the closed door of the patient on suicide watch. During the shift, the patient on suicide watch died of a heart attack (which had nothing to do with the technician's failure to monitor).

The state charged the technician with willfully or with culpable negligence neglecting a disabled person, and a jury convicted him. On appeal, a divided First District reversed, holding that neither wilfulness nor culpable negligence could be established on these facts. Judge Barfield dissented.

Second District: Representation
In this case, the Second District addressed a county court's certified question that may interest those who handle personal injury work. The court rephrased the question as follows:
The Second District answered yes.

Second District: Magnuson-Moss
If you have been following the recent spate of district court decisions addressing how and when the federal Magnuson-Moss Warranty Act applies to leased automobiles, you may be interested in reading this decision from the Second District. It's the latest.

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

First District: 57.105
In this case, the First District made clear that section 57.105 -- the fee-shifting statute for unfounded litigation -- applies in administrative proceedings and, if timely raised, is to be considered by the administrative law judge.

First District: Emergency Suspension Orders
Administrative fans may be interested in this decision from the First District. The court quashed an emergency suspension order issued by the Department of Health. The court determined that the order was not based on facts showing an immediate serious danger to the public health, safety, or welfare, and the unlawful activities at issue were not shown to involve sufficiently egregious past harm likely to be repeated.

The case involved a company that distributed plasma-derived pharmaceuticals.

First District: Duty
The trial judge in this case granted summary judgment in favor of a rental car company in a negligence case. The trial court held that the company had no duty to prevent its car from being stolen and that criminal action by the car's thief was an intervening act that broke the causal chain between any negligence by the company and the plaintiff's injuries. As you probably suspect, the car was involved in an accident after it was stolen.

On appeal, the First District disagreed with both of the trial court's conclusions. That disagreement would probably not cause me to mention the case here, except that I am intrigued by the court's language on the duty question. The appellate court held:
Because of the combination of special circumstances that exist in the case at bar, . . . we conclude the question whether the defendant's conduct created a foreseeable zone of risk, giving rise to a duty to lessen the risk by taking precautions to protect others from such risk, is one reserved for the fact finder.
Maybe I'm misreading the court's language, but, to my knowledge, the Florida Supreme Court has repeatedly held that whether a legal duty exists is a question of law for the court, not a question for the finder of fact. Perhaps something about how the facts were presented made a duty determination inappropriate for summary judgment, but if so the trial judge should still determine whether a duty exists as a matter of law once the facts are better developed. Also, perhaps the existence of a duty will turn on certain alleged facts being true, but, again, the factfinder merely determines whether alleged facts are true, not whether a duty exists.

Thursday, November 10, 2005
Appeal Abstracto?
Some days I almost wish I was a pundit. Today is one of them. Someone is going to have a good time discussing this piece of proposed legislation, which would require all Florida children in kindergarten through second grade to take a Spanish class five days a week from a "certified Spanish-language specialist."

Channel 2 in Ft. Myers has more in this story.

Oh, That Grapevine...
It's well known that plaintiffs' lawyers in Florida tend to be a well organized group. Good news and bad travels among them fast, far, and well.

It's just not every day that something from the grapevine becomes publicly traded information. It's not even common that the grapevine itself gets exposed.

Law.com today has this online story about Palm Beach-area Circuit Judge Diana Lewis and Jupiter attorney Brian Labovick. During a trial over which Judge Lewis presided, Labovick posted a perhaps critical message about her on a Yahoo message board moderated by the Palm Beach County Trial Lawyers Association. Someone sent a copy of the message to Judge Lewis, who then disclosed the communication to all counsel in the case. Next thing we know, it's all news.

According to the story, the trial lawyers group is ready to take action against the person who leaked the message. The article mentions an intent to complain to the local chief judge and to seek bar discipline.

Frankly, I am a bit surprised by that reaction. While many older lawyers remain unfortunately unaware of them, message boards are extremely common. (I doubt you can find a person under 30 who has not posted regularly on one or more message boards at some point. I've frequented many.) Perhaps a message board host could require participants to agree to a contract that prohibits disclosures of group discussions, but the consequence of violating that agreement would seem to be a breach of that contract. Can there be more? If a group of friends agree to keep their discussion about a judge confidential, can violation of that agreement translate into something on the level of bar ethics or professional responsibility violations?

I suppose that, depending on identity and the motivations involved, the person disclosing the message to the judge could walk into some professional responsibility and even ethical troubles. But those troubles would seem to be between that person, the bar, and the court -- not with the message board group.

Interesting story.

Wilma's Aftermath
Responding to the massive problems caused by Hurricane Wilma, a number of tolling orders were entered in the last week to extend the deadlines in various courts, including Florida's appellate courts.

Orders entered by the Florida Supreme Court are collected here.

Third District: The high court's order tolling time for the filing of notices of appeal from the close of business on October 21 through the start of business on October 27 is available here.

Fourth District: The high court's order tolling time for notices of appeal from the close of business on October 21 through the start of business on October 31 is available here. Separately, the Fourth District's own order extending all deadlines falling between October 24 and 28 to November 21 is available here.

Fifth District: The high court's order tolling time for notices of appeal from the close of business on October 21 through the start of business on October 25 is available here.

It is noteworthy that all of these orders were entered nunc pro tunc (in essence, retroactively) and in the rather low key way documents are added to the courts' Internet sites. Each order leaves the door open to additional relief in specific cases, but a good rule of thumb in these instances would seem to be just get the document completed and filed as soon as possible. Resolving whether the filing will be deemed timely can be done later, as nunc pro tunc orders are issued and individual circumstances are considered.

Just a note about email: I'm slowly catching up.

Introducing the Eleventh Circuit Appellate Advocacy _________ (help!)
Last week, I mentioned a jaunt to Atlanta where members of the appellate sections of the Alabama, Florida, and Georgia bars met to plan what we hope will be an October 2006 appellate CLE on practice in the Eleventh Circuit. In the words of some, it is a long overdue event. I am aware of at least two unsuccessful efforts in recent years to get such a creation underway.

This meeting came to life through the industrious efforts of Amy Weil, appellate division chief for the U.S. Attorney's Office in Atlanta. The committee is an impressive lot, and after a day of discussion we have a plan in place for what ought to be a highly informative, much interesting two-day seminar.

Key to the program's success will be partipation by the courts' members and clerk's office, and of course a willing audience of attendees. If you might fit in one of these categories, please be on the lookout for information about the event and consider participating -- it would be greatly appreciated.

By the way, for as much as this highly motivated committee accomplished last week, we never did settle on a name for the event. Everyone seemed to agree on "Eleventh Circuit Appellate Advocacy (something)" but not what "thing" captures the occasion's essence. Seminar? Symposium? Conference? Big Fancy Meeting?

If you have any suggestions, drop me an email.

Practice Thoughts
The brief that had me consumed this past week was for a computer software copyright case, a complicated matter that presents some intriguing issues. In thinking about whether to mention the case, instead of just saying that I was busied with work, it occurred to me that I have an informal set of guidelines that I follow in deciding what to post on Abstract Appeal, and I have never written about them at any length.

So while this post will not be terribly lengthy, it will be more than I have previously said on the subject.

I generally say little, if anything, about my own cases, or cases handled by my firm. Early on, I tended to mention if I was at an oral argument at a particular court, but I seem to make even that sort of comment only rarely now. I have presented at least seven or eight oral arguments this year -- maybe I mentioned one? And if I did, I probably said only that I was out of town for the event. I do not think I have ever discussed the merits of a case currently working on, or even who the clients are.

I have won and, well, not won cases during the years I have been posting on this web log, but other than amicus work, I do not recall a time I mentioned the result either way. Correction: I do not recall a time I mentioned my involvement -- I may well have said something about the case. For whatever reason, I am more comfortable discussing my colleagues' successes, within my firm and without, than my own.

I suppose some would say I do a poor job of using this site to market my services as a board-certified appellate lawyer. Perhaps so. But I did not design this web site to be a marketing tool for my practice. I designed it (and, yes, I did design it -- I wrote the html code from scratch) to be the sort of site I would use and read. There was nothing like it in Florida's realm when I started it, and I think that remains true today.

To be sure, I greatly enjoy what I do for a living, and it is often difficult to hold my tongue, virtually speaking, about items that cross my path, particularly in my own practice. From time to time, I may mention a case, and on occasion my work may become so consuming that I cannot devote any time here. In all likelihood, though, my comments in either regard will be few.

Thanks for stopping by.

Wednesday, November 09, 2005
Back In Blog
'Tis the season to blog. Or return to blogging, rather. Many thanks to those who have patiently been checking Abstract Appeal for my return and to those who have sent me all sorts of kind wishes in this last week or so.

There is a lot to catch up on. I'm getting started this morning.

Wednesday, November 02, 2005
Abstract Pause
For those who have wondered, "Does he ever work?", proof of the positive answer lies in this last week, when a brief I'm trying to finish has consumed not only the substantial time I typically work but those off-hours I normally devote to Abstract Appeal. Some cases just call for all you can give.

That said, I am on the road today for a meeting in Atlanta that may interest the appellate practitioners out there. A group of folks from the Georgia, Alabama, and Florida state bar associations is gathering to plan what we hope will become a regular multi-day CLE seminar on Eleventh Circuit practice. I am chairing the CLE Committee for The Florida Bar's Appellate Practice Section, which brings me here. Also here on Florida's behalf is our section chair, Tom Hall, who of course also serves as clerk of our state supreme court. I'll provide an update later on the progress of this newly formed "Eleventh Circuit Seminar Committee."

And I'll get back to blogging soon. Thanks for stopping by.

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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