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Thursday, June 29, 2006
Something To Talk About...
It seems everybody's talking about this. Me too, soon.

Abstract Insight
The next time I end up on a multi-week honeymoon, I'm going to know better than to expect I can come back and not be consumed by the things that piled up when I was away...

Friday, June 23, 2006
Bar Days
I have been at The Florida Bar's annual meeting for the past couple of days, and they have been good ones. I spoke at a CLE on Wednesday and participated in a number of truly collegial appellate events Wednesday and yesterday.

I also attended yesterday's open discussion with five members of the Florida Supreme Court. I took a few notes and thought I would pass along a few nuggets from the session.

There was an extensive discussion concerning questions certified by the district courts. A number of justices were of the view that the district court should explain why the supreme court should resolve a particular question, and one justice suggested that district courts should frame questions in generally applicable ways, so they are not so tied to the facts of the case under consideration. Interestingly, while the justices acknowledged the pending proposed rule change that would permit parties to submit jurisdictional briefs regarding certified questions (and did not indicate how that would be resolved), they seemed more interested in why the district court chose to make the certification than why the parties believe the supreme court should take the case.

With respect to certified conflicts between districts, one justice expressed a dislike for certifications made "to the extent conflict exists," finding them unhelpful. Another justice explained that law clerks in that justice's chambers draft a memorandum on whether conflict truly exists in certified conflict cases.

The clerk of the supreme court noted that, last year, parties attempted to seek supreme court review based on uncertified conflict in over 900 cases, and the court granted review in only six percent of them. One justice repeated a statement once made by an appellate lawyer: if it takes you 10 pages to explain why there is conflict, there probably is no conflict.

Wednesday, June 21, 2006
Judicial Vacancies
Judge Ervin is retiring from the First District on January 1, 2007 -- the end of his current term of service.

Had he been eligible for retention, and wished to serve again, he would have had to seek qualification during the qualifying period, May 8-12, 2006. Of course, he is not eligible, and he did not seek qualification.

Article V, section 10 of the Florida Constitution provides that, "[i]f a justice or judge is ineligible or fails to qualify for retention, a vacancy shall exist in that office upon the expiration of the term being served by the justice or judge." The next section provides that the Governor is to fill such a vacancy. The process involves a judicial nominating commission submitting nominations to the Governor within 30 days of the vacancy's occurrence, a period the Governor can extend for up to 30 days.

Based on these circumstances, the Governor has asked the Florida Supreme Court whether Judge Ervin not qualifying for retention has created a constitutional vacancy at this time, even if a physical vacancy in the office will not occur until January 1.

No doubt the Governor would prefer the nominating process to wind up during his own term, if possible.

You can read the Governor's letter to the high court here. Note the potential timing issues if a vacancy now exists.

Tuesday, June 20, 2006
Eleventh Circuit: Touchscreen Voting Machines Win
We are coming up on another election day, and what better way to get in the swing of things than to ponder the most recent judicial decision on Florida's alleged electoral deficiencies?

Well, the most recent elections decision is this one released today by the Eleventh Circuit. The court considered a suit against the State of Florida brought by U.S. Representative Robert Wexler and others challenging the use of paperless touchscreen voting machines. Representative Wexler and the other plaintiffs argued that, in the event of a recount, the paper from paper-based voting machines can be examined, but there is no comparable manual recount procedure available where paperless touchscreen machines are used. This difference, the plaintiffs argued, violated the equal protection and due process rights of those who must vote using touchscreen machines.

The Eleventh Circuit rejected that argument first by explaining its inherent flaw: it fails to make the proper constitutional inquiry, which is to examine whether voters using one machine are less likely to cast an effective vote than voters using the other machine. Having properly framed the question, the court went on to decide that the plaintiffs argued no constitutionally significant difference between the two voting systems. The court ultimately held that the recount procedures differed with the technologies utilized and were constitutionally permissible.

Swearing Contest
This order from Judge Middlebrooks, of the Southern District, just might satisfy the curiosity of anyone who has pondered the constitutionality of taking oaths of office.

The case concerns a man elected to the Village of Tequesta's Council but who refused to take the required oath, which states:
I do solemnly swear (or affirm) that I will support, protect, and defend the Constitution, and Government of the United States and of the State of Florida against all enemies, domestic and foreign, and that I will bear true faith, loyalty and allegiance to the same and that I am entitled to hold office under the Constitution, and that I will faithfully perform all the duties of the office of _______ on which I am about to enter so help me God.
Focusing on the war in Iraq, the man specifically objected to the portion of the oath requiring sworn support for the governments of the United States and Florida. When Tequesta would not permit him to modify the oath, he sued, claiming the oath to be unconstitutionally vague and violative of his First Amendment rights. (No, he apparently didn't challenge the oath's punctuation or grammar...)

After a thorough and thoroughly interesting review of oath-related case law, the district court rejected his claims.

Monday, June 19, 2006
Alternative Dispute Resolution: Rock, Paper, Scissors
Another order receiving much attention of late is this one from Judge Presnell. It seems the court was a bit weary from counsels' inability to agree on discovery matters. The latest squabble concerned the location of a corporate representative's deposition. The court's solution was "a new form of alternative dispute resolution." The court ordered the parties to meet "at a neutral site" to confer on the location issue, and if they did not agree, then the court ordered them to meet on the courthouse steps and resolve their dispute through a game of "rock, paper, scissors."

Notable to appellate folks, the order specified a precise hearing time for any appeal over the result.

I have heard that, since the order was released on June 6, the parties' counsel have agreed upon a location for the deposition. So no rock, paper, scissors game will be held.

Pledge Standards
Multiple federal district court orders made big news during my absence. One was this order, by which Judge Ryskamp held that Florida public school students have the right to sit during students' recitation of the pledge of allegiance.

The state had argued that, under this statute, students may only be excused from standing and reciting the pledge upon the written request of a parent.

Fifth District: Evidentiary Rulings Must Be Conveyed To Witnesses
The prosecutor in this case did not inform a witness about a pretrial ruling precluding certain testimony. When that testimony slipped out, the prosecutor attempted to defend its admission, and the Fifth District took offense. In particular, the court explained that attorneys have a professional obligation to review with witnesses what matters are barred from evidence.

The court's language struck me as worthy of repetition:
[T]he prosecutor did not bother to explain the pre-trial ruling to the witness before calling him. Instead, the prosecutor explained that he trusted law enforcement witnesses to confine their answers to the questions asked so that he could avoid the improper testimony by simply avoiding any question that would directly call for an answer including the barred evidence. Obviously, this approach did not work. The prosecutor is cautioned that professionalism demands that he review matters barred from evidence by court order with any affected witness before calling that witness to the stand.
(Emphasis added).

First District: Rules Conflict
This decision from the First District demonstrates that where a statute and a rule of procedure collide, the statute will prevail where it provides a substantive right. The case concerned the point at which charges against a mentally retarded defendant must be dismissed based on the defendant's lingering incompetence.

The decision also includes mention of how decisions signed by only one judge, where the other judges simply concur in the result, are not precedential.

First District: Special Laws
What happens when a special law is passed by the legislature in the guise of a general law? It's invalidated, as happened in this decision from the First District. The case concerned a law affecting the certificate of need requirements for new hospitals.

First District: Administrative Standing, Riparian Rights
In this case, the First District examined how associations can bring constitutional challenges to an agency's action, and what happens when riparian rights collide with constitutional protections.

Fourth District: Lis Pendens
This decision from the Fourth District shows the significance of a notice of lis pendens -- even one that regards litigation over the property taking place in another state.

And Now...
Back to the law. I spent a lot of time last week just reading up on what I'd missed. Some of my posts over the next couple of days will be shorter than they might otherwise have been -- there is a lot to cover.

After the 'Moon
Many thanks to those who sent Debbie and me wishes regarding our honeymoon. It really was a great trip. In addition to being very romantic and entertaining, it was enriching, like seeing my history classes come to life.

Two places left me speechless -- St. Peter's Basilica in Vatican City and St. Mark's Basilica in Venice. (Regarding the latter, the awe was unexpected -- you cannot take pictures inside, and there are almost no pictures of the interior available on the Internet. Luckily, while there, we purchased a book on the church that contains pictures of just about every feature.)

Lots of folks have asked me to post pictures. We took some, to be sure. I've reduced just a few to display here:

Debbie & Matt in St. Peter's Square
Debbie and me in St. Peter's Square

Debbie with the cruise ship at St. Tropez
Debbie with the cruise ship at St. Tropez

Me on the Accademia Bridge in Venice
Me on the Accademia Bridge in Venice

Thursday, June 15, 2006
Suit For A Ride
The family of a child who died while riding a ride at Disney's Epcot Center has filed suit against the entertainment company. Read about it here in today's St. Pete Times.

Judicial Clarification
Last month, when the St. Pete Times covered a speech Chief Justice Pariente gave, I posted a link to the story and noted the report's observation that the Chief Justice had been critical of lawmakers' funding for child welfare programs.

Later, the Chief Justice sent the Times a letter clarifying her remarks. She explained that she did not intend to be critical, and she emphasized that while funding is important, all branches of the state's government must collaborate to prevent the problems that force children into foster care in the first place. You can read her letter here.

Appellate Certification
Perhaps a good way to start my return to blogging is to pick up with the final results from this year's appellate certification exam, which were officially released earlier this month.

Congratulations are in order for the following, who this year became board certified by The Florida Bar in appellate practice:

Caryn Bellus
Gwendolyn Powell Braswell
Chris Carlyle
Regine M. Monestime
Paul Morris
Nick Shannin

Monday, June 12, 2006
Buon Giorno!
Many, many thanks to those who've wondered where I've been the last couple of weeks and have been checking Abstract Appeal for signs of life. At the moment, I'm at the airport in Venice, Italy, getting ready to return to America. Debbie and I have just wrapped up our honeymoon. It was a fantastic trip. We visited Rome and Vatican City, took a 7-day cruise that included cities in Italy, Spain, and France, and then visited Venice. Previously, I'd not been anywhere that you need a passport to visit. This was the trip of a lifetime for me.

Hopefully that explains the lack of posts. I had originally intended to do some posting from over here, and I even had some things lined up, but once we arrived in Rome the time just seemed too precious to break away from the trip.

From a peek here and there, it seems the courts have continued to release some interesting opinions. (Though I'm thankful that while I was away the Florida Supreme Court did not release a certain high profile tobacco-related decision -- that one is going to make news....)

You can be sure I will be posting in flurries over the next week as I try to catch up as quickly as possible. Meanwhile, thanks for stopping by. Ciao ciao.

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