Abstract Appeal -- by Matt Conigliaro

Monday, July 31, 2006

Judge Whittemore: Pat-Down Searches Unconstitutional

On Friday, United States District Court Judge James Whittemore released this order, which declared that the mandatory pat-down search of all persons entering Raymond James Stadium for Tampa Bay Buccaneers football games violates the Fourth Amendment.

The decision received a good deal of press this weekend. I will add just a couple of thoughts that I believe could use a little emphasis.

First, the Fourth Amendment does not govern the NFL. It does, however, govern the Tampa Sports Authority, which operates the stadium and has an agreement with the Buccaneers to host the team's home games.

Second, the court did not decide that pat down searches are not a good idea, that far less intrusive searches could not be conducted, or that a constitutionally significant threat to the stadium could not later emerge. The court held that the mass pat-down searches are too intrusive to be predicated on the existing, nonspecific concern over stadium terror.

...posted by ⊥ 7:35 AM ⊥ #

Third District: Government Math

The Third District's decision in this case considered, and rejected, a constitutional challenge to the "strong mayor" referendum that, if passed, would amend the Miami-Dade County Charter.

The court validated part of its calculus by invoking a principle set forth by the ninth century Indian mathematician Mahavira: that nothing from something leaves that same something. Mahavira was no Billy Preston, to be sure, but the mathematician had a point.

As a bit of trivia, Judge Cortiñas should get credit for being the first judge to mention Mahavira in an opinion.

Not just the first judge in Florida.

The first judge in America.

...posted by ⊥ 7:05 AM ⊥ #

Third District: Solemn Promises

In this decision, in which the Third District quashed a local variance, the court made two noteworthy comments.

First, rejecting a set of arguments based on the limited nature of second-tier review, the court explained:

[I]t is the unshirkable obligation of the courts, on whatever "tier" of consideration, "to say what the law is" and to effect that judgment.

Next, the court explained its longstanding role as protector of the public from, among other things, the wholly unfounded use of variances:

[B]y invalidating the variance, we reaffirm this Court’s solemn promise, which it has steadfastly honored, that

[t]he law . . . will not and cannot approve a zoning regulation or any governmental action adversely affecting the rights of others which is based on no more than the fact that those who support it have the power to work their will.
Allapattah Cmty. Ass’n, Inc. of Fla. v. City of Miami, 379 So. 2d 387, 394 (Fla. 3d DCA 1980), cert. denied, 386 So. 2d 635 (Fla. 1980).

Longtime Florida law fans will probably recognize the hand of Judge Schwartz. And yes, Judge Schwartz wrote the Allapattah Community Association decision twenty-six years ago.

...posted by ⊥ 7:04 AM ⊥ #

Third District: Attorney's Fees

Some folks are currently in doubt about whether the longstanding prohibition against recovering fees for litigating the amount of attorney's fees is still in place. This decision shows the Third District believes the rule is firmly in place.

...posted by ⊥ 7:02 AM ⊥ #

Third District: Depositions

If a plaintiff adds a defendant to a case, even after the plaintiff has been extensively deposed, then the plaintiff will probably have a difficult time arguing he or she cannot be deposed by the new party. This decision from the Third District would seem to support that notion.

...posted by ⊥ 6:59 AM ⊥ #

Third District: Handwriting Exam

The trial judge in this case erroneously relied on a handwriting expert to determine a signature was not authentic. If you are not familiar with the specifics of Florida law surrounding handwriting comparisons, then you may wish to check out the Third District's opinion in the case.

...posted by ⊥ 6:57 AM ⊥ #

Third District: Insurance Duties

Does an insurer have a common law duty to ascertain whether assignees exist before settling an insurance claim? No, said the Third District in this decision.

...posted by ⊥ 6:55 AM ⊥ #

Third District: Missing Transcripts

One point that might be taken from this decision would seem to be that, if the Third District relinquishes jurisdiction for a number of days to allow a party to obtain a transcript (or create a statement of evidence), then counsel should promptly inform the court of what those efforts produced at the expiration of the relinquishment period.

Another point concerns the value of a transcript: without it, decisions based on presentations at hearings cannot be reviewed.

...posted by ⊥ 6:54 AM ⊥ #

Third District: Rule 1.525

If some districts might be said to be taking every possible step (and perhaps some not so possible steps) to invalidate motions for attorney's fees, the Third District is on a different course. In this case, the court held that the timing of a motion for fees was irrelevant where the final judgment included an entitlement to fees and the district court had already affirmed that judgment.

...posted by ⊥ 6:52 AM ⊥ #

Third District: Drunken Pilot Cases

The Third District's decisions in this case and this one received some deserved attention. With 43 and 52 respective pages of discussion, the court affirmed the judgments against two airline pilots convicted of operating an aircraft while intoxicated.

The case presented a plethora of interesting issues, from whether federal law governing pilot qualifications preempts state criminal law to whether principles of inoperability apply to a commercial aircraft about to depart.

One issue that caught my eye concerns a challenge to a state law's incorporation of federal standards. The court explained that, inasmuch as the legislature may not delegate its law-making authority to others, state law may not incorporate standards not in place when the state law is adopted. Based on that principle, the court held that the law at issue (this one) would be interpreted not to incorporate federal standards adopted subsequent to 1983, when the state law was last reenacted.

Apparently the parties made no mention of the legislature's longstanding custom of repealing and readopting the entire (or near entire) Florida Statutes, either on a biennial, or, more recently, an annual basis. Is a readoption the same as a reennactment, at least for purposes of the improper delegation of authority doctrine? We know that readoption cures single subject violations.

Perhaps the issue is just for another day.

...posted by ⊥ 6:48 AM ⊥ #

Third District: Certiorari and Psychotherapist Privilege

If a father and mother jointly attend psychotherapy sessions, have they each waived the psychotherapist-patient privilege by having their counseling sessions in the presence of another?

No, said the Third District in this certiorari case.

The court acknowledged that the matter was one of first impression in Florida and stated that, had the counseling been court-ordered, the result would have been different.

...posted by ⊥ 6:42 AM ⊥ #

Third District: Certiorari

A 2005 law provides that asbestos claimants may not file or maintain actions alleging nonmalignant asbestos claims in the absence of a prima facie showing of physical impairment. Does a trial court's decision that the law does not apply to claims set for trial when the law took effect merit certorari review in the district court?

In this case, a divided Third District held that it does. The majority further granted the writ and held that the prima facie showing requirement applies to cases already set for trial when the law took effect.

...posted by ⊥ 6:40 AM ⊥ #

Third District: Punitive Damages

In this case, the Third District reminds punitive damages fans that a hearing on whether prima facie evidence exists to support a punitive damages claim cannot be used to support the prior filing of a complaint containing such a claim. In other words: hearing first, complaint next.

...posted by ⊥ 6:39 AM ⊥ #

Third District: More Pre-Suit Notice

If a notice of intent to initiate medical malpractice litigation is sent by the survivors of a decedent prior to their being appointed personal representatives of the estate, is the notice valid?

The Third District confronted that question in this case. A divided court said yes.

...posted by ⊥ 6:35 AM ⊥ #

Third District: Pre-Suit Notice

If a person sues a hospital because, when he arrived at the hospital for a CT scan, the hospital involuntarily committed him under the Baker Act allegedly based on blood test results showing high levels of alcohol and illegal drugs, is the suit one arising out of medical services for purposes of the pre-suit notice requirements of chapter 766?

Yes, said the Third District in this case.

...posted by ⊥ 6:34 AM ⊥ #

Third District: Forum Non Conveniens

Forum non conveniens fans may be interested in this decision, where the Third District reversed a decision denying a motion to dismiss under that doctrine.

...posted by ⊥ 6:32 AM ⊥ #

Third District: Malpractice and Comparative Negligence

In this case, the Third District held that where an attorney commits malpractice in advising a client, the client cannot be comparatively negligent for following the advice.

...posted by ⊥ 6:30 AM ⊥ #

Third District: Incident Reports

Those interested in whether a plaintiff can discover a defendant company's prior incident reports, and in how a district court reviews production orders for such materials on a certiorari petition, should check out this interesting decision from the Third District.

...posted by ⊥ 6:20 AM ⊥ #

Third District: Venue

This decision affirmed a trial court's dismissal of a cruise ship passenger's claim against the cruise line. The contract between the passenger and the cruise line provided for exclusive venue in the United States District Court for the Southern District of Florida.

Affirming the dismissal, the Third District concluded that no statutory mechanism existed to transfer the case (in the absence of removal by the defendant) and that a dismissal for improper venue is not an abuse of discretion simply because the limitations period may have expired.

...posted by ⊥ 6:18 AM ⊥ #

Third District: Arbitration

Unremarkably, this arbitration decision from the Third District shows the difficulty one has in vacating an arbitrator's award.

Far more remarkable is how the district court held that any error by the arbitrator in refusing to consider a post-arbitration affidavit was harmless: the arbitrator testified before the trial court that, even if the contents of the affidavit had been timely presented, the arbitration decision would have remained the same.

There is no mention in the decision of whether anyone, including the arbitrator, objected to the presentation of such testimony.

...posted by ⊥ 6:17 AM ⊥ #

Third District: Prison Conditions

In this decision, the Third District reminds trial judges that they lack the power to control, through a sentence, the treatment to be given an inmate. Accordingly, the district court struck the portion of a contempt judgment providing that a person be permitted no phone, family or contact visits, exercise, television, library, or commissary privileges.

...posted by ⊥ 6:13 AM ⊥ #

Certified Conflict: Citizens Coverage

In this case, the Third District certified conflict with the Fourth District over whether a total loss under a Citizens homeowners policy includes entitlement to the policy's "Ordinance or Law" additional coverage if the insured fails to show such expenses were incurred.

The Third District held no entitlement to coverage exists in the absence of incurred expenses. The case is now before the state supreme court.

...posted by ⊥ 6:10 AM ⊥ #

Third District: No Multiplier

A trial court's decision not to utilize a multiplier when calculating the attorney's fees owed an insured was affirmed in this decision from the Third District.

...posted by ⊥ 6:08 AM ⊥ #

Third District: Enforceable Settlements

Can a defendant agree to settle with a plaintiff if the plaintiff does not oppose the defendant's summary judgment motion? No, the Third District held in this case.

The district court based its ruling upon this decision, where the Florida Supreme Court prohibited the use of "Mary Carter" agreements.

...posted by ⊥ 6:04 AM ⊥ #

Third District: Forcible Felony Exception

The Third District's divided decision in this case presents a comprehensive look at when an unpreserved error in a criminal case's instructions may or may not constitute fundamental error. Ultimately, the majority concluded that giving the forcible felony exception instruction as part of the self-defense instructions in the case was not fundamental error. Judge Green dissented.

...posted by ⊥ 6:02 AM ⊥ #

Certified Conflict: Apprendi and Inferring Facts

If a jury finds a defendant guilty of aggravated battery with a firearm and shooting or throwing a deadly missile, but the jury makes no further findings, can the sentence on the first conviction be aggravated based on the discharge of the weapon? That would require that the shooting found in the second conviction be inferred to apply to the first conviction.

In this case, the Third District said no and certified conflict with an earlier decision from the Fourth District.

...posted by ⊥ 6:00 AM ⊥ #

Thursday, July 27, 2006

Childers Update

Those following the W.D. Childers saga will be interested to know that, in this order released yesterday, the Florida Supreme Court denied his request to stay execution of his sentence pending the high court's review of his appeal.

The court has not yet determined whether it can and should accept jurisdiction in the appeal, and, coincidentally, the state yesterday filed its brief on jurisdiction. You can read that brief here.

You can read more on how and when Childers will begin to serve his sentence in this story in today's Pensacola News-Journal.

...posted by ⊥ 7:15 AM ⊥ #

Wednesday, July 26, 2006

Important Survey

The District Court of Appeal Workload and Jurisdiction Assessment Committee has put together an on-line survey so that lawyers, litigants, and the public at large can provide feedback on the DCAs. The results will help the committee examine whether any jurisdictional changes would be appropriate.

You can read more about the survey here, and you can take it here. Please do, if you have a minute. This is a great opportunity for public input.

...posted by ⊥ 6:56 AM ⊥ #

Appellate Justice Conference

Last month, I had the good fortune of attending the first Appellate Justice Conference, a joint project of the Conference of District Court of Appeal Judges and The Florida Bar's Appellate Practice Section. The conference was held in Boca Raton as part of the bar's annual meeting activities. About 60 appellate judges, trial judges, and appellate practitioners were invited, and the conference focused on examining the role of the district court opinion. It was an enlightened, and enlightening, discussion.

Chief Judge Kahn captured some moments with photos I am sure will be making the rounds. I have reduced a few (with apologies to those who like high resolution) and thought I would share them here.

Justice Pariente and Celene Humphries

Chief Justice Lewis and Chief Judge Stevenson

Judge Klein, Justice Cantero & John Mills
(intently listening to Judge Warner, I believe)

Judge Cope & Kathi Giddings

Justice Quince & Marianne Trussell

Chief Judge Kahn, Judge Barton & Louis Rosenbloum
(I'm not sure who took this picture...)

Judge Warner & Cerese Crawford Taylor

Surely A Programming Error: Someone Let Me Speak...

...posted by ⊥ 6:20 AM ⊥ #

Tuesday, July 25, 2006

State of War

Locke might say that those in the battle between Florida's plaintiffs' lawyers and Florida's doctors are just playing their parts. And playing them well.

The latest strike comes from the doctors' side in the form of this Internet site, called LitiPages.com.

Today's Daily Business Review has the whole story here, courtesy of Law.com.

The short of it is that a new site has emerged that intends to catalogue (1) attorneys who file medical malpractice claims, for the ostensible purpose of offering medical malpractice victims the option to "avoid lawyers who consistently fail to obtain jury verdicts for their clients"; and (2) plaintiffs who bring medical malpractice claims but fail to obtain a jury verdict against any particular defendant, ostensibly informing such persons that they may be the victims of legal malpractice. The lists would also allow doctors to know whom they might not want to select as patients.

The sad saga continues.

At least this latest move does not use the state constitution as the battleground.

...posted by ⊥ 8:17 AM ⊥ #

Monday, July 24, 2006

Happy Birthday

Not to me -- to the blog. Abstract Appeal turns three years old today, and one long-time reader was kind enough to send not only good wishes but a card of sorts. As I mentioned Friday, it inspired me to back up to pre-honeymoon cases and catch up. Two courts are now fully up to date.

When I started this blog, I had no idea what the future held, including whether it would last three weeks or three months. I decided I would not market the site or pander to any ideological view. Instead, I would just discuss Florida law, to the extent my practice and my other activities would allow, and attempt to contribute an insight from time to time.

Looking back now, the last three years have been tremendously rewarding for me. I am very grateful to everyone who has checked out this tiny space along the information superhighway, and in particular to those who have taken to contacting me about issues and cases. The dialogue has been exceptional.

So, a happy birthday to Abstract Appeal. If you're interested in the card I mentioned earlier, you can check it out here. A bit overstated, to be sure, but well meant.

Thanks for stopping by.

...posted by ⊥ 7:25 AM ⊥ #

Second District: Says Them

I find per curiam affirmances accompanied by dissents without opinions -- like this one -- noteworthy.

But I won't say why.

...posted by ⊥ 6:59 AM ⊥ #

Second District: Class Actions

Class action fans have much to consider in this decision from the Second District. The court examined, and reversed, a certification of claims against a pest control company.

The decision may have many applications in the future. Ultimately, though, it may become best known for rejecting the notion of a "have you stopped beating your wife yet?" class. See note 2.

UPDATE: The court revised its decision in the case. The revision is available here.

...posted by ⊥ 6:55 AM ⊥ #

Second District: Coverage Appeals

Rule 9.110 addresses appeals from final order. Subsection (m) of that rule states:

Judgments that determine the existence or nonexistence of insurance coverage in cases in which a claim has been made against an insured and coverage thereof is disputed by the insurer may be reviewed either by the method prescribed in this rule or that in rule 9.130.

Since rule 9.130 governs non-final appeals, does rule 9.110(m) permit a non-final appeal of an order determining the existence of coverage? No, explained the Second District in this case. Subsection (m) refers to judgments, not orders, and does not expand the non-final order jurisdiction of the district courts. Instead, the court held, the rule allows for optional, expedited procedures where coverage judgments are rendered.

...posted by ⊥ 6:54 AM ⊥ #

Second District: Inverse Condemnation

Eminent domain fans will be interested in this case. If a business is accessible directly from a major thoroughfare, and the state redesigns the roadway to elevate the thoroughfare and create a ground-level frontage road that provides access to the business, has access to the business been substantially diminished?

The Second District said no under the circumstances of the case.

...posted by ⊥ 6:52 AM ⊥ #

Second District: No Record Found

In this case, the Second District held that an officer had probable cause to stop a vehicle when a computer check of the vehicle's tag number returned a "no record found" message.

Judge Northcutt concurred with the decision but did so reluctantly, based on precedent.

...posted by ⊥ 6:49 AM ⊥ #

Second District: Contract Clause

Line drawing is a talent. The Second District displayed a high degree of such talent when, in this case, the court undertook to reconcile case law from the Florida Supreme Court and other state courts applying what look like different (and perhaps ultimately irreconcilable) tests to evaluate laws under the state constitution's contracts clause.

...posted by ⊥ 6:48 AM ⊥ #

Second District: Workers' Compensation Appeals

In this case, the Second District examined when an order denying a summary judgment motion based on a workers' compensation defense is, or is not, an appealable non-final order under rule 9.130.

The decision includes a special concurrence that was joined by a second judge, making it a second opinion of the court.

...posted by ⊥ 6:45 AM ⊥ #

Questions, questions: Lewd Conduct

In this case, the Second District certified the following to the Second District as a question of great public importance:

IN LIGHT OF THE RULING IN GLOVER v. STATE, 863 So. 2d 236 (Fla. 2003), IS THE AGE OF THE OFFENDER AN ELEMENT OF THE OFFENSE OF LEWD OR LASCIVIOUS CONDUCT UNDER SECTION 800.04(6), FLORIDA STATUTES?

...posted by ⊥ 6:38 AM ⊥ #

Judge Villanti: Restitution Prep

In a special concurrence in this case, Judge Villanti offers state prosecutors some thoughts on how to make the process of setting restitution amounts more efficient and accurate. Hopefully the right people are listening.

...posted by ⊥ 6:35 AM ⊥ #

Questions, questions: CCRC

In this case, a divided Second District (with three Fifth District judges sitting as associate judges) certified the following to the Florida Supreme Court as a question of great public importance:

ARE COUNSEL APPOINTED TO PROVIDE COLLATERAL REPRESENTATION TO DEFENDANTS SENTENCED TO DEATH, PURSUANT TO SECTION 27.702, AUTHORIZED TO BRING PROCEEDINGS TO ATTACK THE VALIDITY OF A PRIOR FIRST-DEGREE MURDER CONVICTION THAT WAS USED AS A PRIMARY AGGRAVATOR IN THE DEATH SENTENCING PHASE?

...posted by ⊥ 6:32 AM ⊥ #

Second District: Insurance

If an insured submits an insurance claim that, on its face, is invalid, can the plaintiff later sue the insurer for coverage, present bona fide proof of an entitlement to benefits, and obtain attorney's fees for the effort? Well, as the Second District explained in this case, the insured cannot receive attorney's fees for litigating the denial of a claim that was facially inadequate.

...posted by ⊥ 6:31 AM ⊥ #

Second District: Attorney's Fees

In this case, the Second District demonstrated how Florida's rule that an entitlement to attorney's fees must be pled applies not only to Florida law claims but also to claims based on federal law.

...posted by ⊥ 6:28 AM ⊥ #

Second District: Double Jeopardy

After a jury has acquitted a defendant of a criminal charge, can the trial judge determine that the deliberations were fatally infected with racial tension, rule the verdict a nullity, and retry the defendant on that charge? No, said the Second District in this case. Doing so would violate the constitutional protections against double jeopardy.

...posted by ⊥ 6:28 AM ⊥ #

Second District: Unfair Trade Practices

Those interested in Florida's Unfair and Deceptive Trade Practices Act should be interested in this decision.

A business agreement between the parties gave one the right to use a particular name and mark, but the other party used the name and mark in violation of the agreement. The trial court determined that the activity was not unfair, within the meaning of the act, up until the point the court resolved the parties' rights.

On appeal, the Second District reversed that determination, holding that the defendant's activities were unfair within the meaning of the act and awarding the plaintiff its attorney's fees. Put another way, a breach of contract can be unfair competition, as a matter of law, at least under the circumstances of this case.

...posted by ⊥ 6:27 AM ⊥ #

Second District: Dissolution Residency

Can a noncitizen of the United States living in Florida with a nonimmigrant status be a resident for purposes of obtaining a dissolution of marriage? In this decision, the Second District said yes.

...posted by ⊥ 6:26 AM ⊥ #

Second District: Arbitration

Arbitration fans will be interested in this decision from the Second District. The court rejected various arguments made by the plaintiff against arbitration, including that the plaintiff's joinder of others not bound by the parties' agreement made arbitration impractical and that the defendant's failure to demand arbitration of the plaintiff's claims prior to responding to the complaint amounted to a waiver. The decision demonstrates how Florida's public policy strongly favors arbitration.

...posted by ⊥ 6:25 AM ⊥ #

Second District: Blight, Blight, You're Bloody Well...

The appellants in this case challenged that Florida's Community Redevelopment Act of 1969, which allows muncipalities to forcibly purchase "slum and blighted areas," was unconstitutionally applied against them by Charlotte County. The Second District disagreed.

...posted by ⊥ 6:23 AM ⊥ #

Second District: Declaratory Relief

This decision from the Second District demonstrates the burden a defendant has in obtaining the dismissal of a complaint for declaratory relief.

...posted by ⊥ 6:22 AM ⊥ #

Second District: Stacking Inferences

Fans of the impermissible stacking of inferences rule will appreciate that, in this case, the Second Distict considered the rule's application in a nursing home dispute. Ultimately, the court found the rule insufficient as a basis for summary judgment because the defendant nursing home failed to establish that the plaintiff's theory of how a resident's leg broke was not the only reasonable theory to be drawn from the evidence.

...posted by ⊥ 6:21 AM ⊥ #

Second District: Maybe There Oughta Be A Law...

But there isn't.

That was the bottom line in this decision, where the Second District held that an insurer's liability for uninsured motorist coverage could not be set off by the amount of workers' compensation payments the injured person would most likely receive in the future. Florida's statutory scheme does not authorize such a reduction, and the carrier's policy did not authorize such a reduction, either.

The court noted that the issue presented was "probably a matter for which there could be a better rule of law," but the court held that such a rule should come from the legislature or should be included by carriers in their policies.

...posted by ⊥ 6:20 AM ⊥ #

Second District: Search, Seizure, And A Lotta Luck

In May, the Second District released this search and seizure decision. The court held that officers failed to comply with the reasonable delay requirement of this Florida knock-and-announce statute when they knocked and waited 10 seconds before detonating a "distraction device" and battering down James Spradley's door. The court then relied on federal knock-and-announce jurisprudence to determine that the remedy for the violation should be exclusion of the seized evidence, which would require the charges against him to be dismissed.

Just weeks later, the U.S. Supreme Court held in this case that exclusion of the evidence is not a constitutionally required remedy for a violation of the knock-and-announce principles embodied in the Fourth Amendment. Though the 15-day rehearing period had expired, it appears that, in the Second District case mentioned above, the state immediately sought to reopen the appeal and argue the new supreme court decision, but the state's request was denied.

Going forward, whether Florida will entirely follow the no-exclusion remedial view remains to be seen. Either way, James Spradley had luck on his side in this case.

...posted by ⊥ 6:17 AM ⊥ #

Friday, July 21, 2006

Inspiration

I received an interesting email this morning that inspired me to back up and catch up my postings on noteworthy cases. (The honeymoon, work, and activities all put me quite a bit behind.)

I'll share part of the email on Monday. Meanwhile, on with the posts. As you perhaps can tell from the items below, one court is now up to date.

...posted by ⊥ 9:13 AM ⊥ #

First District: Peer-Review Immunity

Section 766.101 provides physician peer-review committees with immunity for actions taken within the scope of the committees' functions. What if a peer-review committee reviews a physician's expert witness testimony, as opposed to medical services rendered by the physician?

In this decision, the First District held that section 766.101 does not afford immunity with respect to reviews of physician's expert witness testimony.

The court reached a similar conclusion regarding a professional peer review association and 42 U.S.C. chapter 117. UPDATE: The court later issued a clarified opinion in this case, which is available here.

...posted by ⊥ 9:02 AM ⊥ #

First District: Disqualification

If you file a motion to disqualify a trial judge but do not serve the motion directly upon the judge, is the 30-day ruling requirement of rule 2.160(j) triggered?

No, said the First District in this case.

Because the motion's certificate of service did not reflect service upon the trial judge and the 30-day period had neither begun to run nor expired, the district court denied a petition for writ of prohibition. Likewise, because the motion had not been brought before the trial judge, the district court also declined to issue a writ of mandamus to require the trial judge to rule.

...posted by ⊥ 9:00 AM ⊥ #

First District: Appeable Orders

In this case, the trial judge entered an "Order Denying Mandamus Relief" on October 12, 2005; an "Order on Petitioner's 'Delay [sic] Motion for Recusal'" on October 27, 2005; and an "Order Closing File" on December 8, 2005. The petitioner appealed following the December 8 order, and a threshold question was whether the appeal was timely.

The First District said no. The appellate court ruled that no judicial labor remained to be performed after the October 27 order, and thus the 30-day period for taking an appeal ran from October 27.

This decision made me wonder under what circumstances an unresolved motion to disqualify a trial judge leaves judicial labor to be performed, if the merits of the case have otherwise been addressed. Always?

...posted by ⊥ 8:57 AM ⊥ #

First District: Preservation of Error

Improper hearsay under the evidence rules and unconstitutional hearsay under the Confrontation Clause -- this decision from the First District points out that an objection to the former does not preserve an argument regarding the latter.

...posted by ⊥ 8:55 AM ⊥ #

Questions, questions: Riparian Rights

In this order on a motion for certification, the First District certified the following to the Florida Supreme Court as a question of great public importance:

Has Part I of Chapter 161, Florida Statutes (2005), referred to as the Beach and Shore Preservation Act, been unconstitutionally applied so as to deprive the members of Stop the Beach Renourishment, Inc. of their riparian rights without just compensation for the property taken, so that the exception provided in Florida Administrative Code Rule 18-21.004(3), exempting satisfactory evidence of sufficient upland interest if the activities do not unreasonably infringe on riparian rights, does not apply?

The court's original decision can be found here.

...posted by ⊥ 8:51 AM ⊥ #

First District: Delays In Judgment

When the trial judge before whom the parties had tried their case had not issued a decision 18 months after the trial, the parties filed a joint motion for new trial and to disqualify the judge. The motion was denied, judgment was eventually entered, and on appeal, the First District affirmed both denials. The delay was not shown to have affected the ultimate decision, and the delay was not itself a basis for disqualification.

You can read the decision here.

...posted by ⊥ 8:49 AM ⊥ #

First District: Certiorari

The First District held in this case that neither the Department of Administrative Hearings nor the Department of Health had jurisdiction to order DNA testing to resolve a disputed paternity issue. The court issued a writ of certiorari to quash the test order and an order requiring support pending completion of the tests. (It seems the court could also have issued a writ of prohibition, no?)

...posted by ⊥ 8:48 AM ⊥ #

First District: Forum Non Conveniens

Those interested in forum non conveniens decisions may wish to check out this divided decision from the First District.

...posted by ⊥ 8:43 AM ⊥ #

First District: Adoption

Those interested in adoption, particularly where relatives would be the adoptive parents, may wish to check out the First District's decision in this case.

...posted by ⊥ 8:40 AM ⊥ #

Questions, questions: Ad Valorem Taxation

In this case, on a motion for certification, the First District certified the following to the Florida Supreme Court as a question of great public importance:

WHETHER, IN ENACTING CHAPTER 957, FLORIDA STATUTES, THE LEGISLATURE INTENDED THAT PRISON FACILITIES CONSTRUCTED AND OPERATED BY PRIVATE CONTRACTORS AND LEASED TO THE STATE UNDER A LEASE-PURCHASE AGREEMENT SHALL BE SUBJECT TO AD VALOREM TAXES?

The district court answered the question in the negative. You can read the court's original decision here.

...posted by ⊥ 8:39 AM ⊥ #

First District: Arbitration

Arbitration fans may be interested in this decision from the First District. The court explained that where one party seeks arbitration based on a signed agreement and the other party asserts it never signed the agreement, the existence of an agreement between the parties should be resolved by the trial court, not the arbitrator, in an expedited evidentiary hearing.

...posted by ⊥ 8:38 AM ⊥ #

First District: Will Construction

Probate attorneys may be interested in this decision from the First District, which held that a will's prohibition on partition or sale of certain real property was an unlawful restraint on alienation.

...posted by ⊥ 8:37 AM ⊥ #

Questions, questions: Inmate Liens

In this case, the First District considered the propriety of placing liens on inmate trust accounts to recover the filing fees for a mandamus petition. After quashing the order imposing a lien, the court certified the following to the Florida Supreme Court as a question of great public importance:

DOES THE HOLDING IN SCHMIDT V. CRUSOE, 878 So. 2d 361 (Fla. 2003), EXTEND TO ALL ACTIONS, REGARDLESS OF THEIR NATURE, IN WHICH, IF SUCCESSFUL, THE COMPLAINING PARTY'S CLAIM WOULD DIRECTLY AFFECT HIS OR HER TIME IN PRISON, SO TO PRECLUDE IMPOSITION OF A LIEN ON THE INMATE'S TRUST ACCOUNT TO RECOVER APPLICABLE FILING FEES?

...posted by ⊥ 8:35 AM ⊥ #

First District: Adoption

A divided First District tackled an interesting situation in this case when it considered the propriety of a child's adoption without the consent of his unmarried biological father.

The majority found that the man's paternity had been sufficiently established by his participation in a dependency proceeding involving the child. The dissent argued that the father failed to register with the Putative Father Registry or take other affirmative steps to establish his paternity.

...posted by ⊥ 8:34 AM ⊥ #

Questions, questions: Workers' Compensation Fees

You may recall this decision released by the First District back in February. The court held that recent amendments to the workers' compensation statutes require counsel to be paid based not on the time expended but on the benefits conferred.

Later, on a motion for certification, the district court issued this order certifying the following to the Florida Supreme Court as a question of great public importance:

DO THE AMENDED PROVISIONS OF SECTION 440.34(1), FLORIDA STATUTES (2003), CLEARLY AND UNAMBIGUOUSLY ESTABLISH THE PERCENTAGE FEE FORMULA PROVIDED THEREIN AS THE SOLE STANDARD FOR DETERMINING THE REASONABLENESS OF AN ATTORNEY'S FEE TO BE AWARDED A CLAIMANT?

As an interesting post-script, just this past week the Florida Supreme Court declined to answer the question, which apparently was not so important after all.

As an additional post-script, the First District recently issued a decision upholding the new payment scheme against separation of powers, due process, right to counsel, and equal protection challenges. You can read that decision here.

...posted by ⊥ 8:32 AM ⊥ #

First District: Certiorari and Mental Exams

Does the rule that generally permits a party's attorney to be present where the opposition conducts a physical examination of the party apply to mental examinations? Yes, said the First District in this case. The court granted a certiorari petition and quashed an order that prohibited the party's attorney from attending the examination.

...posted by ⊥ 8:31 AM ⊥ #

First District: Reviewing Indigency Determinations

Can a person declared indigent by a lower tribunal for purposes of an appeal seek review of that decision? Yes, said the First District in this decision. The person can do so by motion filed in the appellate court, not by a separate appeal.

...posted by ⊥ 8:30 AM ⊥ #

Monday, July 17, 2006

CLE Reminder

Just a brief reminder to appellate folks -- the monthly CLE teleconference will be held tomorrow. This month's topic will be electronic filing and will be presented by Tom Hall, Clerk of the Florida Supreme Court.

Check the Appellate Practice Section's web site for the usual information.

...posted by ⊥ 9:31 AM ⊥ #

Childers Appeal Reaches The Supreme Court

That a party appeals a district court decision to the state supreme court is rarely a noteworthy event. The criminal case of former Florida Senate President W.D. Childers is one of the rarities, largely because those involved continue to say rather noteworthy things.

You may recall that the en banc First District recently affirmed Childers's convictions for bribery and unlawful compensation -- charges stemming from his time as an Escambia County Commissioner. Later, the First District denied Childers's request for certification to the state supreme court. You can read the 77-page, 10-opinion affirmance here and the 49-page, 6-opinion certification denial here.

With the release of the First District's mandate, Childers should be obligated to begin serving his sentence. That date has been delayed slightly by the trial court to give Childers time to request a further stay from the state supreme court. On Friday, then, Childers filed this stay motion with the Florida Supreme Court. Childers also filed a notice of intent to invoke the supreme court's jurisdiction and a jurisdictional brief.

Here is where things get interesting.

On the heels of the hoopla in the First District over whether one member of the appellate court should have recused himself in the case, Childers's stay request states, in a footnote:

Defendant-appellant respectfully requests that Judge Bell recuse himself from deciding this application for reasons well known to Justice Bell.

How is this so interesting? Let me count the ways.

First, it's a footnote, and it's not even the first footnote. It's note 2.

Second, it's arguably improper, in the sense a request for an appellate judge to recuse himself or herself should be filed as a motion directed to the particular judge, not placed in a one-line footnote with no explanation.

Third, the tone of the note is, well, almost amusing. It is somewhat like saying you-know-that-I-know-that-you-know to a justice of the Florida Supreme Court. Unusual.

Fourth, the note refers to Justice Bell as both "Judge Bell" and "Justice Bell" in the same sentence. Is that a typo or a signal?

Fifth, and finally, this request seems to apply only to the stay motion, not Childers's entire appeal. The note expressly asks Justice Bell to recuse himself "from deciding this application," and the jurisdiction brief makes no mention of any recusal request. If grounds for recusal exist, wouldn't they apply to the entire case, not just a stay request? Perhaps Childers assumed that if Justice Bell recused himself he would do so for the entire case and requesting that particular relief was unnecessary. Odd.

So what is it that Justice Bell supposedly knows so well? On Saturday, the Tallahassee Democrat published this story, which suggested that the reasons may be tied to a 1990 circuit judge race between Justice Bell and Chief Judge Kahn of the First District. That strikes me as implausible.

Ultimately, I have no idea what the footnote references. Justice Bell is, of course, from Pensacola, which is also Childers's home and the site of the crimes for which he has been convicted. That is no basis for a recusal, however.

It may be that we will never know whether the request is well-taken. The court could rule on the motion without Justice Bell's participation. Motions do not require the participation of the entire court.

In related news, on Friday afternoon the supreme court ordered the state to respond to the stay petition by noon tomorrow -- July 18. The court also struck Childers's jurisdictional brief because it failed to follow the Florida Rules of Appellate Procedure regarding the contents and organization of jurisdictional briefs.

Last, I noticed that Childers's stay motion and (now stricken) jurisdictional brief listed his counsel and added, to the side of the page, "of counsel, Alan M. Dershowitz, Esq." In the context of a court filing, I wonder what that language means. Professor Dershowitz is well known, but he is not a member of The Florida Bar and he does not appear to have requested to be admitted pro hac vice for purposes of this case. So is he representing Childers in this appeal?

...posted by ⊥ 9:01 AM ⊥ #

Friday, July 14, 2006

JNC Petition Denied

Apparently well aware of the sensitive time issues surrounding the Miami-Dade JNC's petition, the Florida Supreme Court today took the somewhat extraordinary step of ruling on the merits of the petition before the deadline the court set to file responses and before any responses were received.

The high court denied the petition. Thus, the elections set in place by the legislature will go forward as previously scheduled.

You can read the very brief decision here.

Justice Bell dissented and would have instead dismissed the petition. He did not elaborate on his reasons. Though there is no way to know from the decision, Justice Bell may have seen a procedural problem with the petition, such as its timing.

Justice Cantero dissented, but his dissent did not state he would have granted the petition. Instead, he explained that while the JNC presented a "very strong argument" that the new judicial positions should be elected, the fact that the qualifying period begins next week calls for "immediate resolution," and he would have dismissed the petition without reaching the merits.

The decision states that no rehearing motion will be allowed. The matter is over -- at least until the next time the legislature creates judicial offices that must initially be filled by election.

...posted by ⊥ 6:02 PM ⊥ #

Judicial Vacancy Suit

The requests for immediate action by the Florida Supreme Court continue in the Miami-Dade Judicial Nominating Commission's suit to stop the elections of 55 new trial court judicial positions.

Recall that, earlier this week, the petitioning JNC asked the court either to rule on the petition before July 17 (the start of the qualifying period for those wishing to run for the new judicial offices) or to inform potential candidates that their election preparation efforts may be for naught. You can read that motion here, and you can read the supreme court's unanimous next-day denial of that motion here.

For more on the petition, which was filed on July 6, check out this earlier post.

Yesterday, the Chief Judge of the Fourth Judicial Circuit (a circuit consisting of Clay, Duval, and Nassau counties) filed this motion, asking the court either to rule by July 17 or to extend the qualifying period until after the court rules on the petition. The chief judge pointed out that county judges who wish to run for new circuit judge positions must resign their current offices to qualify for the scheduled elections, and if such resignations are given and the supreme court later holds the new judicial positions must be appointed, not elected, then county judges will have resigned to run in elections that will not be held.

Also, according to this story in today's Tallahassee Democrat, gubernatorial candidate Rod Smith has called upon the Florida Senate to appear in the case.

...posted by ⊥ 8:08 AM ⊥ #

Media Effects: Jessica Lunsford Murder

Yesterday, the judge presiding over the trial of John Couey declared a mistrial at the jury selection stage. A sufficient number of jurors unbiased by media coverage of Jessica Lunsford's death could not be located, and the trial will apparently have to be moved to another location in Florida.

This story from today's Tampa Tribune discusses press coverage and whether the media should consider the impact of stories on the judicial process when reporting the news. Related stories can be seen in today's Orlando Sentinel, Daytona Beach News Journal, and St. Pete Times.

There is another part of the equation that is perhaps worthy of mention if not discussion. Is there a way to educate or train the public, or at least jurors, to set aside information learned outside the courtroom when making decisions inside the courtroom?

...posted by ⊥ 7:44 AM ⊥ #

What You Own, And What You Share

This story in today's Sun-Sentinel caught my eye. It is about how a company has sent over 3000 notices to Palm Beach County and Martin County property owners telling them the company holds an interest in "oil, gas, and mineral rights and deposits" on their land.

The story expresses the amazement you would expect to see from homeowners who had no idea their properties are co-owned, so to speak.

Somewhere out there, a title company is getting a phone call, some homeowners are reviewing their title search reports, and many folks are probably learning that, under this statute, notices of interest in land need only be sent every 30 years. Given Florida's development rate, 30 years is quite a period of time.

Something else about the story struck me as an interesting angle. A homeowner is reported to have said his home is surely not on top of an untapped oil reserve or anything worthy of excavating. That made me think of phosphate, which is mined in many places in southern Florida, though many urban residents -- particularly recent arrivals to the state -- might not be aware of Florida's extraordinary phosphate deposits and mining industry. According to this site, Florida mines supply 80% of the nation's phosphate and 25% of the world's phosphate, and mining at the current rate could continue for hundreds of years. This site, which is very informative if you explore its links, puts the figure at around 300 years.

I am not saying there are substantial phosphate deposits in Palm Beach or Martin County. I have no idea. I am just pointing out that Florida has valuable mineral resources that Floridians might not know about.

...posted by ⊥ 6:51 AM ⊥ #

Wednesday, July 12, 2006

Motion Denied

Acting quickly, and unanimously, the Florida Supreme Court today denied the motion for clarification discussed in the prior post. It thus appears that, from July 17 to 21, the Secretary of State will go forward with accepting qualifying paperwork from those wishing to run for the newly created judicial offices.

You can read the order here.

...posted by ⊥ 4:13 PM ⊥ #

And Still More...

Perhaps concerned that coming events will moot the case, the petitioning JNC in the judicial vacancy case discussed below has filed a motion for clarification with the Florida Supreme Court. You can read that motion here. In short, the petitioner asked the Court either to prohibit the Secretary of State from accepting qualifying papers between July 17 and 21 from those who wish to run for judicial office or to advise that the submission of qualifying paperwork will not affect the case's result.

Also, you can read more about the "contested" elections in this story in today's St. Pete Times.

...posted by ⊥ 10:17 AM ⊥ #

Tuesday, July 11, 2006

More On Judicial Vacancies

A few weeks ago, I offered this post about how the Governor would like to appoint Judge Ervin's successor and has asked the Florida Supreme Court whether a constitutional vacancy, to be distinguished from a physical vacancy, exists at this time.

As a follow-up, the supreme court has issued an order stating that it will respond to the Governor's request and asking that interested persons file responses by July 18.

When the court entered that order, it may have picked up the scent of another brewing vacancy controversy. This one is a bit larger. It concerns the 55 new judicial positions created by this new law. Recall that, in 2004, the Florida Supreme Court certified the need for 110 additional judgeships, and rather than create them all at once, the legislature determined that it would create 55 positions in 2005, which the Governor could initially fill by appointment, and 55 positions in 2006, which would be filled by general election. But can the legislature create new judicial positions that will be filled by election, not an initial appointment?

The Judicial Nominating Commission for the Eleventh Judicial Circuit (Miami-Dade County) says no and has filed this mandamus petition with the supreme court. The petition asks the court to declare unconstitutional the portions of the law requiring the new positions to be filled by election.

The bill became law without the Governor's signature on June 10. The petition was filed on July 6. Because the new law sets a qualifying period that starts July 17 and ends July 21, the petition also asks that the court preclude the Secretary of State from accepting qualifying papers from applicants during that time.

It does not appear the high court is going to preclude the Secretary of State from accepting qualifying papers between July 17 and July 21, but it does appear the court is going to move quickly to hear this matter. In this order, the court required the Secretary of State and other interested parties to file responses by July 21 and for the petitioning JNC to file a reply by July 26.

...posted by ⊥ 8:13 AM ⊥ #

Monday, July 10, 2006

Third District Appointment

Congratulations are in order for Barbara Lagoa, whom the Governor has appointed to the Third District Court of Appeal. Judge Lagoa was formerly with the U.S. Attorney's Office in Miami.

...posted by ⊥ 8:03 AM ⊥ #

Florida Supreme Court: Engle

The Florida Supreme Court's long-awaited decision in the Engle tobacco litigation wound up being the first decision released in Chief Justice Lewis's term as chief. Justice Cantero recused himself, and the remaining six justices wrote three opinions.

The lead opinion was fully joined by only two justices -- Justice Anstead and Justice Pariente. Chief Justice Lewis concurred with the lead opinion except for the portion regarding the class's entitlement to punitive damages. He was joined by Justice Quince. Finally, Justice Wells concurred with the lead opinion's conclusion regarding entitlement to punitive damages and dissented from the lead opinion in many other respects. Justice Bell concurred with Justice Wells.

In the end, the lead opinion is the court's majority opinion, with Justice Wells's opinion creating a majority on the entitlement to punitive damages issue and Chief Justice Lewis's opinion creating a majority on the remaining issues. All things considered, that format is rather straightforward.

Before I get into a breakdown of what the court actually ruled, let me revisit the earlier proceedings. At the request of a group of plaintiffs who claimed they were injured by the tortious conduct by a number of cigarette manufacturers, the trial court originally certified a nationwide class action on behalf of cigarette smokers. Rule 9.130 permits immediate, non-final appeals from such certification orders, and on immediate review the Third District affirmed that order except in one respect: the appellate court found the national class to be too numerous and thus too much of a tax on Florida's judicial system. The appellate court modified the class description to include only Florida citizens and residents. That was 1996.

The case then returned to the trial court, which devised a multi-part trial plan that included allowing a jury to determine the class's entitlement to punitive damages before determining the defendants' liability against any individual claimant. The trial plan also allowed the jury to impose a class-wide amount of punitive damages before determining class-wide liability and compensatory damages.

The defendants appealed the trial plan order to the Third District in the form of a motion to enforce the appellate court's earlier decision, which had stated in part, "[C]ertain individual issues will have to be tried as to each class member, principally the issue of damages . . . ." The Third District initially responded to that motion with an order stating that "the issue of damages, both compensatory and punitive, must be tried on an individual basis." However, the Third District vacated that order and released in its place another one, which denied the motion and held, "The said denial is without prejudice to Movants' right to raise the underlying issues herein, which we do not decide today, on any appropriate subsequent appeal." That was 1999.

The case then proceeded in the trial court. The first phase was a year-long trial that resulted in a number of general findings concerning the conduct of the defendants over the preceeding decades and the effects of smoking cigarettes. The jury also found that the class was entitled to punitive damages. In the next phase, the jury heard the individual claims of three class representatives, finding in each of their favor. Next, the jury determined that the class should be awarded punitive damages against nearly every defendant. The punitive damages findings were made in the aggregate, without respect to individual class members, and the figures totalled $145 billion -- the largest amount ever awarded in any court, anywhere. That was 2001.

The decision was then appealed to the Third District, which issued this lengthy reversal. Among other things, the court determined that the trial plan did not comport with due process, that the class must be decertified, that the plaintiffs' lawyer's comments provoking jury nullification of the law and invoking race-based sympathies required reversal, that the punitive damages awards were barred by the State of Florida's prior settlement with the defendants, and that the punitive damages amount -- "the GNP of Several European Countries" -- was bankrupting and excessive. That was 2003.

The plaintiffs then appealed to the state supreme court, which took the case based on what it would later characterize as a misapplication of its precedent regarding whether the state's earlier settlement barred the punitive damages awards. The court heard oral arguments in 2004, and last week the court issued its decision.

The high court began by unanimously reversing on the issue of whether the state's prior settlement eliminated the class's punitive damages claims. The conflict on that issue gave the court its jurisdictional basis, but the court did not confine its analysis to that issue. The court further held that the determination of entitlement to punitive damages erroneously preceeded a determination of liability, that the amount of punitive damages was in all events excessive, that the Third District erred in nullifying its previous affirmance of the certification order and decertifying the class, that the class should not continue as a class action but that certain general class-wide findings should remain effective and of use to individual plaintiffs who file actions within one year of the supreme court's mandate, and that the plaintiffs' counsel's racially sensitive comments and nullification arguments did not warrant reversal. The court determined that the certification should include those persons who allegedly manifested injuries from cigarette smoking by November 21, 1996.

Chief Justice Lewis and Justice Quince concurred in all respects except one. They would have allowed the jury's finding of entitlement to punitive damages to stand based on the other findings made in the first phase of trial. Those findings did not establish liability in favor of any plaintiff but did include general findings of improper conduct.

Justices Wells and Bell created a majority on the punitive damages entitlement issue by agreeing with Justices Anstead and Pariente that entitlement cannot be determined before liability is determined. Justices Wells and Bell, however, would have gone further and held that entitlement to punitive damages cannot be determined until compensatory damages are resolved as well. Justices Wells and Bell would also have held that the entire case was not suitable to class action treatment and that the bifurcation of issues permitted by the majority (allowing the first phase findings to be used in later trials) violated due process and the Seventh Amendment's jury trial right. Justices Wells and Bell would also have approved the Third District's conclusion that the plaintiffs' counsel's improper jury arguments called for reversal.

Ultimately, this decision leaves a lot to think about in terms of future litigation.

Consider the majority's determination that the Third District erred in revisiting the class certification issue on plenary appeal. The majority appears to conclude that only manifest injustice will permit an interlocutory decision affirming a certification order to be reversed on plenary appeal. Will such concerns influence defendants not to take non-final appeals of certification decisions, particularly where the trial plan is not yet determined? Perhaps the civil rules committee will consider amending the rules to require certification orders to lay out the trial plan, so that if a certification order is immediately appealed, the appellate court can place the order in context and see how it will be effectuated before determining whether certification comports with due process and the general certification criteria.

Another item to consider for future cases is the majority's ruling on the plaintiffs' counsel's arguments. The jury in this case was two-thirds African-American, and after reviewing some of the plaintiffs' counsel's racially inflammatory (and objected-to) remarks, the court gave the following rebuke:

There is absolutely no justification for this series of remarks, which appears to compare the tobacco industry with slavery and, by invoking civil rights leaders Rosa Parks and Martin Luther King, appealed to the jury’s sense of outrage for the injustices visited upon African-Americans in this country. We condemn these tactics of Mr. Rosenblatt. His attempt to incite racial passions was conduct unbecoming an attorney practicing in our state courts.

Nonetheless, the court held that counsel's remarks did not warrant reversal, based on the totality of the circumstances. Much to think about.

...posted by ⊥ 7:45 AM ⊥ #

Thursday, July 06, 2006

Engle Is Out

This morning, the Florida Supreme Court released its long-awaited decision in the mammoth Engle appeal. This is the Florida tobacco class action that resulted in a $145 billion verdict against a number of large cigarette manufacturers. In 2003, the Third District released this decision which reversed the punitive damages award and the class certification. The plaintiffs then appealed to the state supreme court.

You can read today's decision here. I am still reviewing it but the short of it is that the court approved the reversal of the punitive damages award, though on different grounds than the Third District utilized, and the court quashed the remainder of the district court's opinion. That includes the closing argument point and, to an extent, the class certification point.

More to come once I digest it all.

...posted by ⊥ 11:11 AM ⊥ #

First District: Nothing Funny Happened On The Way To En Banc, Or On The Way Back

I mentioned last week that I would discuss this recent decision from the First District. In appellate circles, this 49-page compilation of opinions is among the most talked about decisions in recent memory, at least among decisions whose merits are a bit beside the point and where talk centers on how the court did what it did.

This is the W.D. Childers appeal. More specifically, this recent decision resolves Childers's motion for certification to the Florida Supreme Court. You may recall that when the 77-page decision on the merits originally came out, I posted a quite lengthy post ("First District: Nothing Funny Happened On The Way To En Banc") that discussed the background and issues and broke down the case's maze of opinions. I suppose I also added a comment or two on how the 14 participating court members issued 10 -- yes, 10 -- opinions. They let us know they were paying attention.

If you do not recall the details surrounding the earlier decision, I recommend reading my earlier post, linked above. It is too long to reprint here. Perhaps that is fitting, all things concerned.

Childers's motion requested certification of questions of great public importance regarding the court's decisions on cross-examination and restitution as well as the district court en banc procedure, which Childers asserted to have been irregular in his case. Recall that the panel would have voted 2-1 to reverse Childers's conviction, but the court took the case en banc and affirmed the judgment against him. The en banc court denied the motion, ending the case in the First District.

The majority opinion denying the certification motion was joined by the six judges who signed onto the earlier en banc merits majority opinion (Judges Davis, Van Nortwick, Padovano, Lewis, Hawkes, and Thomas) as well as Judge Browning, who had earlier concurred in the en banc review but dissented on the merits, and Judge Allen.

Judge Allen, whose previous concurrence on the propriety of en banc review was joined by six other judges, wrote another concurrence that expanded greatly upon his earlier statements. More specifically, he explained that he voted to hear the case en banc because he concluded Chief Judge Kahn's service fifteen years ago with a law firm headed by an attorney who was a close friend of Childers threatened to cast suspicion on a result in which Chief Judge Kahn's vote was a deciding one. This time, no one joined Judge Allen's opinion.

Judge Padovano authored a concurrence that offered his detailed views of why the merits of the original panel decision called for en banc review. He likened the intended use of the state's motion in another case to revoke a witness's plea deal to a negative comment by the prosecutor on the witness's credibility, and just as a prosecutor's positive opinions of a witness's credibility cannot be used at trial by the state, a prosecutor's negative opinions of a witness's credibility should not be used at trial by the defendant. He also explained that the "exceptional importance" criterion for en banc review is a matter of discretion with each judge, he disagreed there was any need for the state supreme court to define that concern with greater specificity, and he examined the First District's en banc track record to find no evidence the en banc mechanism has been misused.

Judge Wolf concurred in part and dissented in part. He would have certified the matter of en banc review but not the merits.

Judge Polston also concurred in part and dissented in part, but he would have certified the merits issues (cross-examination and restitution) and not the en banc review issues.

Judge Webster concurred in the result only.

Chief Judge Kahn dissented. He would have certified questions regarding the merits and the en banc review process. He also clarified that he was not suggesting the en banc procedure in the case had been "irregular" but that "such a procedure is fragile and would benefit from rules known in advance." He specifically listed the questions he would have certified, and he again mentioned the direct conflict he sees between the en banc majority's decision on the restitution issue and other district court decisions. Judge Ervin concurred with Chief Judge Kahn.

Finally, and once again, Judge Barfield recused himself, though we know that fact only from its mention in the majority's opinion denying Childers's certification motion.

There is certainly much that can be said of this case, and it may be pointing out the obvious to suggest that much, perhaps too much, has already been said by the court itself. At the same time, and ironic though this is, the court might be complimented for having collectively said as little as it did.

In the end, the decision raises truly interesting issues concerning a defendant's ability to cross-examine a state witness and a county's ability to seek restitution under section 775.089. Of course, the decision also raises interesting issues about the criteria district court judges use when deciding whether to hear a case en banc, and one thing we have learned in this regard is that at least seven judges on the First District believe that cases, not just issues, may be of exceptional importance.

It seems highly likely that Childers will seek review in the state supreme court based on asserted conflict regarding the restitution issue. More on that when it happens....

...posted by ⊥ 9:28 AM ⊥ #

Wednesday, July 05, 2006

Privacy Moratorium Modified

The Florida Supreme Court has made modifications to the present moratorium on the electronic release of judicial records. In large part, the court has directed various entities to develop particular policies, approved a pilot program offered to be conducted by the Clerk of the Court of Manatee County, and expressed great concern over what might be called the responsible handling of court records containing potentially private information.

You can read the latest order here. Interestingly, it was issued on June 30 -- the day Justice Lewis took the court's helm as chief justice. The transition occurred late in the day and, I suppose to avoid any question over when the order was issued and whether it was signed by the correct chief justice, both Justice Pariente and "Chief Justice-elect R. Fred Lewis" signed it.

...posted by ⊥ 9:02 AM ⊥ #

Chief Justice Lewis

Congratulations are in order for newly installed Chief Justice Fred Lewis, who was sworn in as Chief Justice of the Florida Supreme Court this past Friday.

His term as chief will last for two years, and assuming no relevant changes occur on the court, he will be succeeded as chief by current justice Peggy Quince.

...posted by ⊥ 8:45 AM ⊥ #

Stay, Stay, Stay

Everyone involved in civil trial and appellate practice will want to be aware of this new law, which took effect over the weekend. It governs automatic stays of execution and will have radical effects on the supersedeas bond process.

The law creates a new statutory provision, section 45.045, consisting of four subsections. The most significant subsections are the first two. They are worth quoting:

(1) Except for certified class actions subject to s. 768.733, in any civil action brought under any legal theory, the amount of a supersedeas bond necessary to obtain an automatic stay of execution of a judgment granting any type of relief during the entire course of all appeals or discretionary reviews, may not exceed $50 million for each appellant, regardless of the amount of the judgment appealed. The $50 million amount shall be adjusted annually to reflect changes in the Consumer Price Index compiled by the United States Department of Labor.

(2) In any civil action brought under any legal theory, a party seeking a stay of execution of a judgment pending review of any amount may move the court to reduce the amount of a supersedeas bond required to obtain such a stay. The court, in the interest of justice and for good cause shown, may reduce the supersedeas bond or may set other conditions for the stay with or without a bond. The court may not reduce the supersedeas bond if the appellant has an insurance or indemnification policy applicable to the case. This subsection does not apply to certified class actions subject to s. 768.733.

To sum that up, defendants against whom large judgments are entered will not have to follow the requirements of present rule 9.310. That rule has long provided for an automatic stay of monetary judgments upon the posting of a bond equal to 100 percent of the judgment amount plus two years' interest. Some saw the rule's requirement as a possible deprivation of due process -- if an error leads a judge or jury to award a significant amount of money, the defendant will have to come up with that sum of money, plus two years' interest, in order to prevent execution on its assets while an appeal is pursued. Depending on the circumstances, that argument can have some weight to it.

Under the new law, a $50 million bond cap is created, and the court will have the ability, "in the interest of justice and for good cause shown," to reduce the amount required to obtain a stay "pending review of any amount."

The new law raises some interesting issues.

For instance, is the law constitutional, or does it unconstitutionally infringe on the judiciary's authority to create procedural rules? Some will assert that the ability to hold off a judgment creditor from selling or seizing your assets while you appeal a judgment you believe to be erroneous is necessarily substantive, but others will contend that the procedure for obtaining a stay is no more than that -- procedure.

Another potential issue concerns the insurance exception found in subsection (2). Does it apply whenever any insurance exists in any amount, as where a defendant with $100,000 in insurance coverage receives a $10 million judgment, or does the exception apply only to the limit of available insurance, so in the previous example the court would be precluded only from lowering the bond amount below $100,000? It might be difficult to argue the former interpretation is reasonable. I can also think of additional examples that are potentially problematic, as where coverage is low but mandatory, like PIP coverage, or where coverage has already been paid or tendered. In any event, this statute will provide insurers with a number of considerations that might affect things such as the timing of declaratory actions and the specific language used in bonds.

It will be interesting to see how the Florida Supreme Court and the Appellate Rules Committee address this new statute. Stay tuned.

One last thought: If the law was going to include a rising cap, adjusted annually by inflation, it might have been helpful to require the state Comptroller or someone to perform the calculation each year and publish the updated cap amount. Otherwise, as the years go by, performing this calculation based on a 2006 cap of $50 million will become time-consuming and awkward.

...posted by ⊥ 8:01 AM ⊥ #