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Tuesday, January 31, 2006
Fourth District: Voir Dire
Trial lawyers may be very much interested in this decision from the Fourth District.

The appellate court reversed a judgment because the trial court allowed each side only 30 minutes to conduct voir dire once the judge finished asking his own questions. The Fourth District held that 30 minutes to examine 19 prospective jurors is too little time. Notably, the court also stated that even reasonable time limits on jury selection should be made known to the parties prior to trial.

Third District: Proper Respects
In footnote 3 of this decision, the Third District paid some polite respects to the late and "legendary" jurist Manuel "Manny" A. Crespo.

Fourth District: Suicide-By-Cop Defense
If you and another person commit a felony, and in the course of doing so, or in fleeing afterwards, someone is killed, you will be criminally responsible for that death. That is the well known crime of felony murder, and it applies even if the person killed is your accomplice and the killer, so to speak, was a police officer attempting to apprehend the two of you.

But what if an officer kills your accomplice because the accomplice intentionally took steps to provoke the officer into firing a fatal shot, in a so-called suicide-by-cop? Can you defend a felony murder charge on grounds your accomplice wanted to die and departed from the criminal plan in order to achieve that unfortunate end?

In this case, the Fourth District said yes and reversed a felony murder conviction based on the trial court's refusal to instruct on the victim's alleged independent act of instigating a suicide-by-cop.

Fourth District: Search and Seizure
When a public school official wishes to search a student, it may do so only where the search is reasonably justified and reasonably performed. What standard applies when a public school official wishes simply to detain and question a student? In this case, the Fourth District held that a school official may detain and question a student so long as those actions are not arbitrary, harrassing, or capricious.

Fourth District: Certiorari Limitations
In this case, the Fourth District acknowledged that, in second-tier certiorari cases, the court is limited to quashing the order on review or allowing it to stand -- it cannot quash the order and direct further action.

Frankly, my understanding has long been that such is also the rule in any certiorari proceeding, but we regularly see certiorari cases that quash decisions and provide directions to the lower court on "remand."

Second District: Searches of Stolen Property
Do you have a reasonable expectation of privacy with respect to stolen property? Not much, the Second District held in this interesting and divided opinion, at least where you are not physically connected to the property. The case involved a stolen laptop found in a car. The defendant had authorized the police to search the car, but not the laptop.

Chief Judge Fulmer dissented and would have remanded for further proceedings on the matter before resolving the ultimate legal questions.

Certified Conflict: Ineffective Assistance
Can an incarcerated person obtain relief on an ineffective assistance of appellate counsel claim where the person's appellate attorney filed an Anders brief? Keep in mind that where counsel files an Anders brief, the defendant can come forward and file his or her own brief.

The question is rather interesting, and it is one the Florida Supreme Court may get a chance to answer. In a 1999 case, the Fourth District held that the Anders procedure permits a defendant to raise any issue on appeal and, consequently, the defendant cannot complain that counsel failed to raise an issue. On Friday, though, in this decision, the Second District disagreed, siding with another district that also disagreed with the Fourth District's conclusion.

Will the state appeal? It may not want the conflict resolved...

Certified Conflict: Strip Searches
Florida has a law -- this one -- governing strip searches. What if police officers conduct a search within the meaning of that law but fail to comply with its requirements, perhaps failing to conduct the search outside the view of others or failing to obtain written authorization from the supervising officer on duty? Should evidence obtained in the search be suppressed, as it generally would be where the search and seizure protections of the Fourth Amendment are violated?

In this case, the Second District held that Florida's strip search law addresses remedies for its violation and suppression is not among them, and so evidence obtained in violation of the law should not be suppressed. The court certified conflict with a 1996 decision from the Fourth District.

Fourth District: Insurance Coverage
In this case, the Fourth District points out that a claim against an insurance agent will not lie for failure to procure a policy where the underlying claim against the plaintiff is for a true intentional tort. Florida's public policy prohibits permitting insurance coverage for true intentional torts.

Justice Sam Alito, He Is
This blog centers on Florida law, not the national scene, but I feel it is only appropriate to say congratulations to the U.S. Supreme Court's newest associate justice, Samuel Anthony Alito, Jr.

Monday, January 30, 2006
Abstract Press
My thanks to the St. Pete Times for its mention of Abstract Appeal in this past Friday's edition. In its "Blog Watch" spot, which it places on page one of the City & State "B" section, the paper wrote:
The legal drama over Terri Schiavo drew thousands to a Web site run by St. Petersburg lawyer Matt Conigliaro. The case is over, but Conigliaro's straight-up legal analysis continues. Most of it is of interest to lawyers only, but he also offers his take on legal topics in the news, including school vouchers, without the ideological bent favored in the blogosphere. Look for abstractappeal.com under reader blogs at sptimes.com/blogs.
That's much appreciated.

Felony Problems
Friday's Sun-Sentinel included this interesting story about how Breward County is refusing to pass federal assistance monies on to a low-income resident who wants to weatherstrip his home. The man qualifies for the aid under a federal program, but the county refuses to permit convicted felons to receive the aid.

According to the story, the man has now filed suit against the county in federal court in Orlando.

Can a state entity add eligibility restrictions to a federal aid program? Not in most cases. I wonder if Brevard will spend more money attempting to defend this program than the program itself involves.

Hey, Legislature! Non-Traditional Parenting Arrangements
I wonder if I was too busy last week to catch the attention given this decision from the First District. It certainly strikes me as an interesting case about how Florida views parenting arrangements in non-traditional family situations.

The case involved two women who lived together and apparently shared an intimate relationship. In 1997, they entered an agreement with a sperm donor. The agreement provided that if either woman became pregnant from the donated sperm, both would be co-parents to the child and thus responsible for all decisions involving the child. One of the women became pregnant and gave birth. Later, the pair entered a second, more detailed agreement providing that the woman who did not bear the child would contribute financially to the child's support, and that if the two stopped living together, then they would both continue to provide for the child as before, to facilitate a close relationship between the other and the child, and to raise the child in a joint manner. Additional agreements were signed involving authority to make health care decisions for the child.

In 2001, a second child was born to the same woman. Once again, a sperm donor was utilized, and the pair executed similar "co-parenting" documentation.

Years later, the couple separated, and the biological mother moved with the children to another town in Florida. The other woman filed a lawsuit claiming breach of contract and breach of fiduciary duty, and seeking declarations regarding the childrens' residency and support. The trial court observed that the plaintiff and a guardian ad litem made compelling arguments that enforing the co-parenting agreements was in the children's best interests, but the court held that Florida law does not recognize such agreements and dismissed the plaintiff's claims.

On appeal, the First District affirmed that decision. In short, the court held that agreements granting a non-parent parental rights over a child, or visitation, are not enforceable in Florida.

Judge Van Nortwick filed a concurrence. (It was labeled a special concurrence but did not expressly note any disagreement with the majority's conclusions.) He urged the legislature to address the needs of children born into or raised in non-traditional households when a break-up occurs. The concurrence offered a number of interesting statistics concerning non-traditional relationships. Also, while Judge Van Nortwick recognized the role of a parent's constitutional privacy right to raise a child without state interference except where harm threatens the child, he sees that the legislature has room to enter this area and protect a child's well-being in these situations.

I find it interesting that cases like this involve no discussion of whether a person can waive parenting rights through an agreement like the one in this case. I doubt the courts would find any waiver analysis to be dispositive, but it might open the door to a deeper discussion of the public policy issues impacted by these situations.

First District: Republication Repeal
Those unaware of how each republication of the Florida Statutes effects a categorical repeal of all previously published statutes not contained in the new edition may learn much from this decision. The First District held that a 1997 law regarding the use of names and addresses of those circulating citizens' initiative petitions on those petitions was repealed with the release of 1999's Florida Statutes, which omitted that law. The omission was apparently not accidental -- the original law was passed conditioned on certain voter approval in the 1998 general election, and that approval never came to pass.

First District: Administrative Deference
This decision from the First District is another example of courts declining to defer to an agency's interpretation of a statute where that interpretation conflicts with the statute's plain and ordinary meaning. The case involved a union challenge to a Public Employees Relations Commission decision regarding Florida's career service laws.

Questions, questions: Fee Recovery From Indigents
When may an indigent inmate filing a civil claim related to his or her sentence avoid a property lien for the fees associated with the case? What if the suit does not address the sentence directly, but instead challenges whether in passing a particular sentencing law the legislature followed the constitution's procedural requirements?

It was just such a situation that the First District confronted in this case and which prompted that court to certify the following to the Florida Supreme Court as a question of great public importance:
The majority held that the inmate's challenge was a collateral criminal proceeding and that the inmate was entitled to avoid a lien for the case's filing fees. Judge Hawkes dissented.

First District: Appointment of Counsel
If you find yourself incarcerated and wondering if you can receive appointed counsel for your postconviction proceedings, check out this decision from the First District.

First District: Workers' Compensation
Those interested in attorney's fees issues in workers' compensation cases may wish to check out this decision from the First District.

Saturday, January 28, 2006
Questions, questions: Confrontation Clause
Last week, the Fifth District held in this case that the hearsay-unfriendly rule of Crawford v. Washington does not apply to probation revocation hearings.

This week, the First District reached the same conclusion with respect to community supervision revocation proceedings. You can read that decision here. It ends by certifying the following to the Florida Supreme Court as a question of great public importance:

Trial Time
No posts the last two days -- I was providing appellate support for a trial in Hendry County. Nice place. Blogging proved a bit difficult, but I look forward to going back some time with Debbie for a canoe ride along the Caloosahatchee River.

Wednesday, January 25, 2006
Nah, No Pressure...
Yesterday's St. Pete Times ran this story about how Florida State University has asked legal Everyman, and professor, Sandy D'Alemberte, not to represent Florida's lobbyists in their legal challenge to a new disclosure law.

The university is apparently concerned about negative reaction from the state legislature affecting FSU's funding needs, given D'Alemberte's strong ties to the school.

FSU President T.K. Wetherell is quoted in the story as saying, in an email on the subject, "Please find another attorney. This case isn't that complicated. A first year FSU law student could win it in his/her sleep."

Whoever is now retained, well, the pressure's on...

Fifth District: Trial Court Discretion On Remand
At the end of this decision, the Fifth District explains how a remand for further proceedings leaves trial courts with discretion to take whatever action is appropriate, while a remand with specific instructions leaves the trial court with no discretion to deviate from the directed action.

Fourth District: Negligence
In this case, the Fourth District held that a complaint stated a cause of action against the defendants for negligent care of a minor who died of a drug overdose. The court found a duty of care to exist based on the complaint's allegation that the defendants assumed such a duty.

Interestingly, the court gave only brief mention, in a footnote, of the fact it affirmed the dismissal of the plaintiff's wrongful death claim because that claim was not timely filed. (The limitations period on wrongful death claims is two years, while the limitations period on negligence claims in general is four years.) That would seem to mean that the negligence theories the court allowed to proceed were based on damages other than the child's death, though the court did not indicate what those damages might be.

Fifth District: Confrontation Clause
Does the hearsay-unfriendly rule of Crawford v. Washington apply in a probation revocation hearing? Florida's courts had not expressly addressed that question until this decision, where the Fifth District held Crawford does not apply.

Fourth District: Trusts
Is standing to challenge distributions from a trust a procedural or substantive matter? In this case, the Fourth District held that the question was a substantive one and therefore was governed by the law of the state with the most significant relationship to the trust. Trusts and estates fans may wish to check this case out.

Fifth District: Annexation
Real property fans may be interested in this decision from the Fifth District, where the court explored numerous issues concerning the law applicable to voluntary annexations.

Fifth District: Habeas
This decision from the Fifth District is an interesting read concerning habeas corpus claims. The court examined when such claims can exist independent of rule 3.850, where they can be filed, and when they can be dismissed as procedurally barred, all in the context of a mental incompetence claim.

Fourth District: Inverse Condemnation
Land use fans will probably be interested in this clarified and re-released decision from the Fourth District. The court affirmed a trial court's decision that requiring a developer's successor to comply with a planned unit development agreement did not constitute a taking and that the agreement's preservation requirements were enforceable. The property at issue was the Big Blue Reserve in the Village of Wellington.

(You can read the court's original December 2005 decision here. I did not compare them to determine what changed, and the court did not specifically highlight a particular area as being clarified.)

Tuesday, January 24, 2006
Second District: Confessions, Tolls, the Constitution, Legal Article Suggestions, and a Hey, Legislature!
Yes, those items all fit into this decision from the Second District. Let's tackle them and others in true/false fashion.

True or false...?

Article V, section 20 of the Florida Constitution gives Florida's circuit courts jurisdiction to review the reasonableness of Florida's roadway toll charges? True.

Circuit courts can similarly oversee the maintenance of Florida's toll bridges? No, that's false.

The areas of court jurisdiction listed in article V, section 20 remain available to Florida's courts unless the legislature deletes them as "obsolete"? True.

An island resident who must use a bridge to access her home has standing to challenge the reasonableness of that bridge's toll? True.

The toll for crossing the only bridge that permits roadway access to Captiva Island and Sanibel Island has been $3 since the early 1960s, when the minimum wage was $1 per hour and gas cost 25 cents per gallon? True.

The plaintiff in this case, a Sanibel Island resident, has alleged and will get a chance to prove that the $3 charge is unreasonable now? True, too.

This case was orally argued on May 6, 2005, and Judge Altenbernd confessed to the "delay" in getting the court's January 20, 2006 decision issued? True.

That was not much of a delay, relative to, say, some other courts? True.

The Second District wishes the legislature would provide courts with some guidance for determining the legality of tolls? True.

The Second District also suggests that some enterprising student of the law examine the provisions of article V, section 20 to determine which jurisdictional areas listed there have not been deleted as "obsolete" and thus remain viable bases for Florida's courts to exercise jurisdiction? Quite true.

Third District: Certiorari
The Third District reminds us in this decision that orders denying discovery are generally not reviewable by petition for certiorari, since any error can usually be corrected after the final judgment is entered.

Second District: Charging Liens and Retaining Liens
Fee agreement language is, well, near and dear to some attorneys' hearts. If you are one of them, here is some fee agreement trivia for you, courtesy of the Second District.

Before signing an agreement for representation by a firm, a client struck through the following language:
To the extent of any fees and costs due to the FIRM . . . CLIENT hereby assigns to the FIRM any and all funds and property due to the client or received by the client as a result of this representation. The CLIENT also specifically authorizes and empowers the FIRM to receive any said funds and property and to pay to itself all said fees and costs owed the FIRM from said funds and property before it releases the balance to the CLIENT.
Assume there was no similar language in the agreement. Later, the firm wanted payment from the client's settlement funds. Was the omission of the above language fatal to the firm's efforts to obtain a charging lien? What about a retaining lien?

Yes and no are the correct answers, as you can confirm by reading this decision.

Third District: Class Actions
Class action fans may be interested in this decision from the Third District. The court reversed a certification order, holding that the putative representative has no claim and therefore no standing to pursue any such claim on behalf of a class of other persons.

Second District: Alimony
Say what you like, but don't say a husband denied permanent alimony can never win an appeal on that point. It happens.

Third District: Contract Interpretation
The maxim "inclusio unius, exclusio alterius" means that the inclusion of one is the exclusion of another. This principle is often seen in statutory interpretation and is sometimes -- such as this month's voucher decision -- seen in constitutional interpretation, but does it apply in contract interpretation?

No, said the Third District in this case. The decision concerned an interesting salary dispute between the University of Miami and a tenured professor, with the court venturing into the compensation system of "the privileged world of tenured academia."

Third District: Judicial Disqualification
Where an attorney opposed a trial judge's election and the two later quarreled, must the judge recuse herself if asked to do so in cases involving that attorney? In this case, where the contentious events took place over 20 years ago, the Third District said no and denied a petition for writ of prohibition.

Third District: FDUTPA Damages
For an interesting and succinct discussion of damages under Florida's Deceptive and Unfair Trade Practices Act, check out this decision from the Third District.

Third District: Appealable Orders
Is an order determining that someone has standing to participate in a forfeiture proceeding immediately appealable? No, said the Third District in this case.

Second District: Failure to Prosecute
In this case, the Second District pointed out that an attorney who serves pleadings by U.S. mail on a court and opposing counsel has good cause to believe he or she is prosecuting the case, even if the pleadings are, in some ways, "odd."

The case also suggests a good reason for charging clients for postage and keeping records of those charges.

Questions, questions: Double Jeopardy and Sexual Conduct
In this case, the Second District certified the following to the Florida Supreme Court as a question of great public importance:
The Second District answered the question in the negative, holding that such a conviction violates double jeopardy principles.

Third District: Trial Court Stays
In this case, the Third District affirmed a trial judge's decision not to vacate a stay order in the case. The order had been entered in favor of federal litigation on the same subject matter.

Second District: Contempt
In this case, a trial judge consulted with a predecessor judge to determine the meaning of a final judgment in a family law case. The trial judge then relied on the predecessor judge's stated intent to hold a party in contempt for failing to comply with the final judgment's directives. The Second District reversed.

Third District: Confession of Error
The panel in this decision from the Third District disagreed over whether to reverse, notwithstanding the state's confession of error.

Second District: Arbitration
Those interested in arbitration, and particularly NASD arbitrations, may wish to check out the Second District's decision in this case. Applying federal arbitration law standards, the court reversed a trial court's decision to vacate an arbitration award. The decision demonstrates the value of requiring arbitrators to state the basis for their decision, and the value of when they do not.

Third District: Guardianships
Those interested in guardianships may wish to check out this decision from the Third District. A divided court dealt with a guardian's right to seek judicial approval to change a ward's residence and a spouse's due process right to be involved in such proceedings.

Monday, January 23, 2006
Daytona Nudity Laws Ruled Unconstitutional
On Friday, a U.S. district judge ruled that various anti-nudity laws adopted by the City of Daytona Beach are unconstitutional. The court held a six-day trial on the matter and concluded that the city failed to substantiate the premises for its prohibition on nude exhibitions, particularly an empirical relationship between adult businesses and crime.

The subjection of a municipality's anti-nudity factfinding to a full trial, and the court's result in this case, will likely be big news in constitutional circles.

The Daytona Beach News-Journal has this story on the decision, and you can read the court's order here.

Interrelated Claims
If you need a refresher lesson in what makes claims sufficiently interrelated to preclude the appeal of one while the other remains pending in the trial court, then you have a couple of options.

You could check out the First District's brief explanation in this case, or you might check the Second District's bit more detailed examination in this case.

Of course, if you are preparing for the appellate certification exam, which will be held in just over a week, you might want to read both decisions...

First District: Guardians Ad Litem
Those interested in litigation involving children may be interested in this decision. When parents litigating on behalf of their daughter rejected a guaranteed recovery under NICA, the defendant requested that the trial court appoint a guardian ad litem for the child. The trial court declined to do so, and the defendant sought a writ of certiorari from the First District. After a lengthy discussion, including application of the parents' constitutional privacy right to raise their child without state interference, the appellate court denied the petition.

First District: Certiorari
Certiorari for a monetary sanction? Not in this case.

Wednesday, January 18, 2006
More Thoughts On The Voucher Decision
The preceding post explained a bit of the background surrounding the recently concluded school voucher case. Here are some thoughts on the Florida Supreme Court's decision.

1. I will begin with a common subject -- whether the court was correct to decide the case based on the free public schools provision, when the First District had found the OSP unconstitutional under the no-aid provision. It makes sense for the court to have addressed the free public schools provision first. If the court held the OSP unconstitutional under the no-aid provision, the program could be saved by severing the portion that allows religious schools to participate. That would still leave private, nonreligious schools in the picture, and the court would still have had to consider whether the free public schools provision prohibits the participation of private, albeit nonreligious, schools.

That said, I am surprised the high court decided to leave the First District's no-aid decision intact without addressing it at all. Had the First District determined the OSP's constitutionality under both provisions in a single opinion, and had the supreme court held the program unconstitutional under just the free public schools opinion, the supreme court would in all likelihood have reversed the First District's entire decision. That would have effectively vacated the First District's no-aid provision discussion and avoided the situation where the First District's no-aid provision decision remains the law but has never been reviewed by the supreme court. So, in my view, it would have been logical, and practical, for the high court to have vacated the First District's no-aid decision, even if the court did not reach that issue.

Because the court did not do that, the First District's no-aid provision decision remains as much the law of Florida as the Florida Supreme Court's decision on the free public schools provision.

Why is that significant? Well, the First District held that the no-aid provision means public funds cannot make their way to religious organizations, even if that happens in a religiously neutral manner through the choice of private persons. Accepting that as the law, how can the McKay scholarship program for disabled students be constitutional, since it also allows parents to choose to use public funds to send their children to private schools, whether religious or not? If public money making its way to religious schools to educate students in a religious environment constitutes religious aid, can such aid ever be permissible in Florida, regardless of how desirable the program may be? What about the popular Bright Futures scholarships, which over 100,000 Florida students use annually at the religious or nonreligious college or university of their choice -- can that program be constitutional if the OSP is not? What about the special program state scholarships allocated to, for instance, students at religiously affiliated Bethune-Cookman College? And how about programs that are not education-related but directly give money to religious organizations, such as historic preservation grants given directly to "historic" churches to repair and restore their buildings? Are they religious aid? The uncertainty resulting from the supreme court's decisions not to address the no-aid provision and to leave the First District's decision intact seems unfortunate.

2. Another interesting angle is what is not unconstitutional. The supreme court found the OSP unlawful for two reasons: when parents choose to send their children to private schools, the monies their public schools would have received get diverted to the chosen private schools, and the chosen private schools are largely unregulated and thus not part of the "uniform" system of public schools. The First District held the OSP unlawful because some scholarship money can find its way to religious schools. All of those problems disappear if the program simply allows students to transfer between schools or school districts and prohibits the money ordinarily allocated to those students' attendance from being used at their former schools. Such a program might require changes in the current, district-wide approach to funding but could retain the so-called competitive facet of the OSP -- forcing schools to meet quality standards or lose their funding to alternative schools. It might not be politically enticing, but, legally speaking, it sounds quite constitutional.

3. The supreme court's decision to make its decision prospective from the end of the current school year is interesting for multiple reasons. The court has allowed an unconstitutional program to continue based on the equity of, and perhaps the practical problems avoided by, not disrupting students in the middle of a school year. Consider, though, that the OSP's challengers have long asked the courts for monetary damages, to force the state to repay the school districts the monies they "lost" when students in their failing schools opted to use the program's scholarships at private schools. Does ruling that the decision is prospective only effectively deny the request for monetary relief for past violations?

4. There has already been talk that a constitutional amendment will be proposed that would ensure the OSP could continue. I have not seen any actual proposed language, but it seems the proposal would have to take one of two forms. The more cumbersome approach would be some sort of amendment to both the religious freedom and public education portions of the constitution, modifying them in a way that would make them inapplicable to the OSP and similar programs. More likely would seem to be a proposal to create a separate provision that expressly grants the legislature authority to create educational programs like the OSP. Presumably, the proposal would be broad enough to include programs like McKay, Bright Futures, and the many other scholarship programs that serve one need or another and which could theoretically be problematic under the OSP case decisions because they involve private or religious schools.

I suppose we will see what is proposed soon enough, and I will note timing is an issue. The next statewide election is this November, but the Florida Supreme Court has held the OSP unconstitutional as of the end of the current school year.

Just some thoughts...

Thoughts On The Voucher Decision
A number of folks have asked for my reaction to the voucher decision. Ordinarily, a post on a case that big would have been made immediately after the decision's release, but, as many of you know, I was a bit busy at the time -- creating some family ties.

So, a bit belated, but here goes. I am going to do this in two posts. This post will describe what happened. The next post, which I will finish later today, will assume the reader is very familiar with what happened and will make a series of comments on the case and its result.

The program at issue in the voucher case is Florida's Opportunity Scholarship Program, the "OSP." Florida grades its public schools, and if a school consistently receives failing grades, the OSP offers that school's students a chance to, in essence, get out. Their parents have the option of receiving a tuition voucher, or "opportunity scholarship," that they can use at a qualifying local school. Qualifying local schools are generally other non-failing local public schools and local private schools, whether religious or nonreligious. For a private school to participate in the program, it must accept the scholarship as full payment for the student's attendance, and if the school is religious, it cannot require OSP students to participate in religious training or exercises.

A number of folks challenged the OSP on numerous grounds. One of them was that it violated the First Amendment's Establishment Clause. Another was that it violated the Florida Constitution's church/state provision, article I, section 3, which contains what is commonly called a "no-aid provision" prohibiting state aid to religious institutions. A third ground was that the OSP violated article IX, section 1 of the Florida Constitution, which requires the legislature to maintain a "uniform system of free public schools."

The First Amendment challenge was lost, indirectly, when the U.S. Supreme Court rejected a First Amendment challenge to a similar program in Ohio. You can read that decision here.

The free public school provision challenge was the first challenge addressed by the trial court hearing the case. In 2000, the trial court decided that the OSP violates that provision because it permits tax dollars to be used at private schools. Later that same year, the First District reversed that decision. The court held that utilizing private schools as an option under the OSP, where students can use the scholarships as full payment for their schooling, does not deprive any student of a free education or otherwise violate the legislature's obligation to provide a uniform system of free public schools.

The OSP's challengers appealed to the Florida Supreme Court, which declined to review the First District's decision. At that point, many thought the controversy over the free public school provision was over.

The no-aid provision challenge lived on, however. In 2002, the trial court decided that the OSP violates the no-aid provision because one option under the program allows parents to use public monies at religious schools. The First District heard the appeal from that decision and, sitting en banc, ultimately decided 8-5 to affirm it. You can read that decision here.

The case then proceeded to the state supreme court, which this time accepted jurisdiction to review the First District's decision. The case was fully briefed, though the parties focused almost entirely on the no-aid provision and how Florida should treat religious institutions that indirectly benefit from public programs. For instance, Governor Bush's brief was 46 pages, and only three of them addressed the free public schools provision. The challengers' brief was 50 pages, and only 11 of them addressed the free public schools provision.

The supreme court held oral arguments in November. To the surprise of many, the justices' questions focused on the free public schools provision, with little attention paid to the no-aid provision.

Just under two weeks ago, the Florida Supreme Court released its decision holding the OSP unconstitutional under the free public schools provision. You can read that decision here. Divided 5-2, the court held that the OSP's diversion of public school funds to private schools is contrary to the free public school component of the provision and that the essentially unregulated private schools eligible to participate in the program are not part of a uniform school system. The court did not address the no-aid provision and expressly left the First District's decision on that issue undisturbed.

Justice Bell dissented and was joined by Justice Cantero. Like the First District, they would have held that the free public school provision does not require the legislature to provide only a uniform system of free public schools and that the legislature has discretion to create a program like the OSP to fill an important educational need.

Interestingly, the majority held that its decision would be prospective only, taking effect at the end of the current school year.

I will explain why I find that interesting, and a number of other thoughts on the decision, in the next post.

Voucher Posts
I'm working on them...

Eleventh Circuit: En Banc On Banks
You may recall this decision released by the Eleventh Circuit last June. It involved the popular subject of payday loans, and a divided court held that the Federal Deposit Insurance Act does not preempt Georgia's efforts to stop its payday loan businesses from arranging certain payday loans with out-of-state banks. Judge Carnes authored a caustic dissent that expressed great trouble with the majority's decision-making and its decision.

The court has voted to hear the case en banc. You can read the en banc order here.

Tuesday, January 17, 2006
Catching Up
Not there yet, but I'm getting closer...

Fourth District: Operational v. Planning
Is a school board's selection of the time the school day will end a planning-level decision (generally precluding liability for "unreasonable" decisions) or an operational-level decision (generally permitting liability for "unreasonable" decisions that result in harm to persons or property)?

In this case, the Fourth District held a decision to end school at 4 p.m., notwithstanding heavy traffic at that time along nearby streets, to be a planning-level decision.

Fourth District: Negligence By Insurance Agents
Can an insurance agent be found negligent by a jury in the absence of expert testimony? In this case, the Fourth District suggested that the answer may depend on the conduct at issue, and the court held that an expert is required where the conduct is the alleged failure to recognize that an appraisal was too low. That issue is "simply too esoteric" to be understood by a lay jury without expert assistance.

Fifth District: Improper Argument
A closing argument that essentially asked jurors to calculate pain and suffering damages based in part on one defendant's assets warranted a reversal in this decision from the Fifth District.

Certified Conflict: Ineffective Assistance
In examining an ineffective assistance of trial counsel claim in the context of an unpreserved challenge to a juror for cause, does the prejudice inquiry required by Strickland v. Washington examine whether a biased juror sat on the jury or whether the defendant could have obtained a new trial in the original case had the issue been preserved?

In this case, the en banc Fourth District held that the defendant must prove the service of a biased juror, certifying conflict with an earlier decision from another district. Judge Warner and Judge Farmer dissented.

Judge Hazouri recused himself in this case. I've not previously noticed if he does that in all en banc cases where his vote would not affect the outcome and the case is likely to be reviewed by the state supreme court. If he did, it would appear to avoid the problem of a six-justice review in the supreme court, since Chief Justice Pariente, his wife, typically recuses herself in cases where Judge Hazouri has participated.

Fourth District: Mandamus
In this case, the Fourth District reminds us that a writ of mandamus can be issued to block a trial where, contrary to rule 1.440, a trial court sets a trial date less than 30 days from the service of a notice for trial.

Fourth District: Arbitration
In this decision, the Fourth District reminds us that non-signatories to an arbitration agreement can compel arbitration based on the doctrine of equitable estoppel.

Fourth District: Unclean Hands
Family law fans may enjoy this decision from the Fourth District, where a former husband received a money judgment against his former wife but the doctrine of unclean hands justified not setting that amount off from his alimony obligations to her.

Fourth District: Qualified Immunity
Qualified immunity often turns on whether a reasonable person in the shoes of the government actor would have known the conduct at issue was unlawful. The answer to that question often depends on whether the court examining the qualified immunity issue is willing to apply general case law to the context or if the court wants to see a case involving closely identical circumstances before it will reject a qualified immunity defense.

This case involving citrus canker inspections makes for a good example of these different approaches. State agricultural inspectors stormed onto a property without a warrant to destroy citrus trees, and in the process they had the property owner arrested for his refusal to permit the warrantless entry. In his subsequent civil suit, the trial court found the individual state agents and sheriff's deputy to have qualified immunity, and the Fourth District affirmed in a divided decision.

The warrantless entry was unlawful. The question involving the three individual defendants was whether qualified immunity covered them because they had no reason to know a warrant was required.

The majority took a narrow approach and held that, when the events at issue occurred, no case had applied the constitutional principles surrounding warrantless entry to a citrus canker inspection, so qualified immunity applied. Dissenting, Judge Farmer took a more broad approach and would have held that controlling federal case law made the unlawfulness of the warrantless search here far too clear for qualified immunity to apply.

Fourth District: Apex Doctrine
Under what circumstances can the top officials of a company avoid having to participate in depositions? The Fourth District did not squarely answer that question in this case, but the court did explain that a blanket rule against deposing top corporate officers seems inconsistent with Florida's rules of civil procedure. The court also explained that, in the case, the top folks at issue did not provide affidavits denying personal knowledge (as the "apex doctrine" would have them do) and that, under the facts of the case, the target officers appeared to be proper deponents.

Fourth District: Grandparent Visitation
For an interesting decision on how an agreed order for grandparent visitation need not be a permanent relinquishment of parental authority to determine how to raise a child, check out this decision from the Fourth District.

Saturday, January 14, 2006
"I Buy Houses"
You mean those little signs along the roadside are unlawful, at least in some counties? Yep.

The Two Sides Of A Written Decision
Florida International University's law school rejected Armando Santana's application. He sued, claiming "he was denied admission based on his membership in a protected class, and that the rejection violated his rights under the education clause of the Florida Constitution."

The trial court dismissed the first two counts of the complaint with prejudice and dismissed the remaining four counts with leave to amend. Representing himself, the applicant appealed the dismissal of the first two counts.

You know where this leads: the Third District dismissed the appeal. Interestingly, the court did so in this three-page order which explained in some detail why the order was nonfinal and not appealable at this time.

Now, on one hand, the pro se plaintiff got a polite three-page explanation of why his appeal was dismissed. On the other hand, lots more people now know about the plaintiff's case and his premature appeal.

First District: Police Stops
If an officer knows that a vehicle is owned by a woman with a suspended license, but the vehicle is being driven by a man, can the officer pull the vehicle over and use any incriminating evidence obtained during the stop against the driver?

If you said no, then you are correct, as the First District explained in this decision.

First District: Rule Challenge Standard
Significant administrative cases are somewhat rare, so this decision from the First District should qualify as a rarity.

The court held that, through its 2003 amendments to chapter 120, the legislature modified the standard to be used by an administrative law judge when considering a challenge to an agency's rule. Rather than a competent substantial evidence standard, utilized in connection with the evidence before the agency at the rulemaking point, the standard is now whether the rule is supported by a preponderance of the evidence presented in a trial de novo before the ALJ.

In a footnote, the court quoted extensively from a law journal article on the 2003 amendments written by Larry Sellers. Never underestimate the potential influence of such articles.

Second District: Nonmarital Funds
For an example of a case where inherited funds placed into a jointly titled account remained the separate property of one spouse, check out this decision from the Second District.

Second District: Insurance
In this case, the Second District reminds us that an insurer can unilaterally rescind an insurance policy based on misrepresentations by the insured. The insured's consent is not necessary.

Loitering Concerns
In this decision, the First District reminds law enforcement and trial courts that the offense "loitering and prowling" requires not only some loitering or prowling but circumstances that warrant concern for the safety of nearby persons or property.

To drive the point a bit further, the Second District offered the same reminder in this case.

Third District: Workers' Compensation Immunity
If an employee is injured due to a dangerous condition on certain property, and the company that owns the property is also the employer's workers' compensation carrier, does workers' compensation immunity preclude a premises liability claim against the company?

No, explained the Third District in this case.

Questions, questions: Confrontation Clause
In this case, the Second District certified the following to the Florida Supreme Court as a question of great public importance:
The Second District answered in the affirmative.

First District: Legal Conclusions
Here is a cite that I intend to keep handy. The First District explained that a witness's opinion about whether she owned a vehicle was "a mere legal conclusion with no probative effect," since the matter was a question of law.

Second District: Attorney's Fees
Those interested in attorney's fees issues in construction cases may wish to check out the Second District decision in this case.

First District: Vested Rights
Those interested in due process challenges and the issue of whether someone holds a vested right to something may want to check out this decision from the First District. The court held that a hospital did not have a constitutionally protected property interest based on its statutory right to challenge another hospital's certificate of need application.

First District: Religious Freedom
Prison inmates wishing to wear a short beard for religious reasons may find some good news in this decision from the First District.

Friday, January 13, 2006
Minor Video Sales
Yesterday's Miami Herald had this interesting story about a proposed state law that would ban the sale or rental of violent video games to persons under 18. The state senate's version of the bill is available here, and the house version is available here.

Many thanks to the reader who pointed out this story as well as this decision (large download) released last month by a federal district court in California. The court granted a preliminary injunction that blocks enforcement of a similar law on First Amendment grounds.

Contingency Fee Comments Wanted
There are only a few days left to submit comments, but I thought I'd mention that The Florida Bar is accepting comments on the contingency fee rule it must propose in response to this order from the Florida Supreme Court.

You may recall that, last month, the high court directed the bar to draft a proposed rule of professional responsibility that accounts for newly adopted article I, section 26 of the Florida Constitution -- the provision that gives medical malpractice plaintiffs the right to retain certain high percentages of awards they receive. Under the supreme court's directive, the proposed amendment must (1) acknowledge the new constitutional provision, (2) require attorneys to notify prospective clients with medical liability claims of the provision, and -- perhaps most important to many -- (3) provide a procedure whereby a medical liability claimant may knowingly and voluntarily waive the rights provided in the rule.

Comments must be submitted to the Bar by January 17. For more on this, look here.

For more on the supreme court's order, see this prior Abstract Appeal post.

Got Inventory Attorney?
Florida lawyers: have you designated your inventory attorney yet?

Effective January 1, Rule 1-3.8(e) of the Rules Regulating the Florida Bar requires attorneys practicing in Florida (including in-house counsel) to designate an "inventory attorney." Inventory attorneys are persons who review a bar member's files when that member dies or becomes incapacitated, disbarred, or otherwise unable to serve clients, making contact with clients, courts, and others as appropriate.

The person you designate is not obligated to serve, but attorneys are obligated to make a designation.

You can learn more about inventory attorneys and even make your selection online from this page at The Florida Bar's site.

Starting off with some January 1 news, consider this post a reminder that the new interest rate for Florida judgments is up 2% from last year to 9%. You can view the current rate and past rates here.

Back In Blog
It's good to be back. Many sincere thanks to those who sent me warm wishes on the wedding. I have a lot to catch up on, and I'll start with some news items.

Monday, January 09, 2006
Confessions of a Happy Man
I have not responded to emails for the last several days, and my posting has been far lighter than normal for the past few weeks. It's confession time, and I'm going to depart from Florida law for a moment to mention a few things about me.

You see, the last month has been a bit hectic. It started with my first marathon, the Marathon of the Palm Beaches, which I managed to finish:

If you look close, you can see Debbie in the background taking a picture of me from behind as I cross the finish line.

After the marathon came the holidays. They're always a handful.

And then after the holidays, Debbie made me the happiest and most fortunate guy in the world -- we got married at San Pablo Catholic Church in Marathon, Florida! That twelfth day of Christmas was sure something special. The official photos are weeks away, but my sister snapped this nice one:

So, I'll be back to the blog in a few days with lots of interesting things to talk about, and I'll answer all of my unanswered email later this week.

Thanks for stopping by.

Friday, January 06, 2006
Twelve Days of Christmas, Appellate Style
On The Twelfth Day Of Christmas, The Judges Gave To Me...

Twelve Friendly Amici
Eleventh-Hour Drop Boxes
Ten Extra Pages
Nine Preserved Points
Eight-Page Opinions
Seven Concurring Justices
Six-Minute Rebuttals
Five Golden Rule Reversals
Four Certified Questions
Three Confessed Errors
Two Conflicting Districts
And A 30-Day Extension On My Brief

Thursday, January 05, 2006
Twelve Days of Christmas, Appellate Style
On The Eleventh Day Of Christmas, The Judges Gave To Me...

Eleventh-Hour Drop Boxes
Ten Extra Pages
Nine Preserved Points
Eight-Page Opinions
Seven Concurring Justices
Six-Minute Rebuttals
Five Golden Rule Reversals
Four Certified Questions
Three Confessed Errors
Two Conflicting Districts
And A 30-Day Extension On My Brief

School Voucher Program Declared Unconstitutional
I may be away, but I'm taking a brief moment to mention that, today, the Florida Supreme Court declared Florida's Opportunity Scholarship Program unconstitutional.

You can read the decision here.

While in the last several years the case has focused on whether the program violates the "no aid" provision of article I, section 3 of the Florida Constitution, the court based its ruling entirely on article IX, section 1, which requires the legislature to provide for a uniform system of free public schools.

A 5-2 majority held that the OSP is unconstitutional because it diverts money to private schools, away from public schools, and also because the private schools eligible to receive OSP funds do not constitute a "uniform" school system. Both of these features, the court determined, violate article IX, section 1's requirement that the legislature provide for a uniform system of free public schools.

Justice Bell authored a dissent, which Justice Cantero joined.

The court never reached the article I, section 3 issue.

I will have some comments and observations on this opinion after I return to St. Pete.

Light Posting...
To state the obvious, my posting is quite light this week. I'm out of town for a special event...

Wednesday, January 04, 2006
Twelve Days of Christmas, Appellate Style
On The Tenth Day Of Christmas, The Judges Gave To Me...

Ten Extra Pages
Nine Preserved Points
Eight-Page Opinions
Seven Concurring Justices
Six-Minute Rebuttals
Five Golden Rule Reversals
Four Certified Questions
Three Confessed Errors
Two Conflicting Districts
And A 30-Day Extension On My Brief

Tuesday, January 03, 2006
Twelve Days of Christmas, Appellate Style
On The Ninth Day Of Christmas, The Judges Gave To Me...

Nine Preserved Points
Eight-Page Opinions
Seven Concurring Justices
Six-Minute Rebuttals
Five Golden Rule Reversals
Four Certified Questions
Three Confessed Errors
Two Conflicting Districts
And A 30-Day Extension On My Brief

Fifth District: Arbitration
In my opinion, arbitration was 2005's hottest appellate topic. It's fitting, then, that one of the more interesting cases released on the last business day of 2005 was this opinion from the Fifth District.

The case involved arbitration agreements between a brokerage and an investor. One of those agreements provided, "I agree that all controversies which may arise between us concerning . . . my account . . . shall be determined by arbitration."

The broker handling the account left the brokerage, and the investor agreed to use the broker's new brokerage firm. Thereafter, the investor's account lost a substantial amount of money, and the investor sued the original brokerage, claiming three violations of the brokerage's alleged fiduciary duties: (1) the brokerage failed to supervise the broker's management of the investor's accounts, (2) the brokerage failed to warn the investor, before it transferred its accounts, that the broker's trading on them was inconsistent with the investor's investment objectives, and (3) the brokerage failed to warn the investor that the broker handling the accounts had a "significant regulatory history."

The issue in this case was whether the claims were within the scope of the parties' arbitration agreement. The trial court sent the case to arbitration, following which the court confirmed the arbitration panel's decision dismissing or denying each of the investor's claims. On appeal, the Fifth District reversed, holding that the claims were not arbitrable in the first place.

I see this case as noteworthy in two respects. First, it points out that under Florida law, an order compelling arbitration can be appealed in a final appeal after the arbitration is held and the result confirmed.

Second, the case demonstrates what you might call a considerable reluctance on the judiciary's part to read arbitration provisions found in parties' contracts as encompassing torts related to the contractual relationship. The Fifth District concluded:
The arbitration clauses in the agreements between the Diocese and Prudential do not require arbitration of the Diocese’s claim. The cause of action alleged by the Diocese, damages for breach of fiduciary duty, is a tort action which does not arise out of or relate to the contracts. There is no nexus between that claim and the agreements between the Diocese and Prudential, and the resolution of that dispute is not dependent upon the construction of the agreements. The parties intended the arbitration clauses to apply to contractual issues, such as "transactions," "my account," or "this or any other agreement between us," and not to a tortious breach of fiduciary duty.
In other words, the Fifth District concluded that the investor's tort claims were not "controversies . . . concerning . . . my account."

I suspect that ruling will be significant to those who draft, rely upon, or litigate arbitration agreements, and particularly so for the investment industry.

Happy Happy
Just a word on the new year -- 2006. I hope it is a great one for everyone. And thanks for stopping by.

Monday, January 02, 2006
Twelve Days of Christmas, Appellate Style
On The Eighth Day Of Christmas, The Judges Gave To Me...

Eight-Page Opinions
Seven Concurring Justices
Six-Minute Rebuttals
Five Golden Rule Reversals
Four Certified Questions
Three Confessed Errors
Two Conflicting Districts
And A 30-Day Extension On My Brief

If yesterday and today are any indication, it's going to be a late year. Time to post the eighth day, before it becomes the ninth...

Sunday, January 01, 2006
Twelve Days of Christmas, Appellate Style
On The Seventh Day Of Christmas, The Judges Gave To Me...

Seven Concurring Justices
Six-Minute Rebuttals
Five Golden Rule Reversals
Four Certified Questions
Three Confessed Errors
Two Conflicting Districts
And A 30-Day Extension On My Brief

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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