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Tuesday, November 21, 2006
First District: Waiver and Preservation
Judge Webster's concurrence in this decision from the First District reminds us it is one thing to fail to preserve an objection to error and another to waive error altogether. You can also preserve an objection to an error you have waived.

First District: Workers' Compensation
Can a Catholic priest seek workers' compensation from the diocese he serves? Not if the diocese classifies the priest as an incardinated cleric and not an employee. Such a classification cannot be challenged in a workers' compensation proceeding without violating the First Amendment, explained the First District in this case. The church autonomy doctrine prohibits governments from becoming excessively entangled in ecceliastical matters, and the workers' compensation claim involved no third parties and was entirely an internal religious issue.

The court noted that its decision did not address whether the same result would be reached with respect to a minister of a "congregational" or "presbyterial" church that "does not have the same hierarchical structure and well-established body of canonical law" as did the diocese in this case.

First District: Bad Faith
In this case, the First District issued a writ of certiorari quashing a trial court's order that refused to dismiss an insured's statutory bad faith claims against an insurer. The coverage issues, including the extent of coverage liability, were not yet fully resolved, and the court held that irreparable harm will result if the bad faith claims are permitted to be litigated while the coverage issues are not concluded.

Monday, November 20, 2006
First District: Nothing Funny Happened On The Way To En Banc, Part III
Saturday's St. Pete Times had this story on the recent change in the Chief Judge position at the First District. The article, which ran in St. Petersburg (and perhaps elsewhere) as an above-the-fold cover piece, explains that Judge Kahn has stepped down as chief, and Judge Browning has taken the lead administrator's reins at the court.

Unfortunately, the story is not simply about a shift in who serves as chief judge of the First District. That sort of change happens in all six of Florida's appellate courts every other year, and the event rarely earns a mention anywhere. No, this change appears linked to the W.D. Childers saga that unfolded this year at the First District.

For those who missed it, the saga developed in two principal parts. The first part surrounds this 77-page en banc opinion issued by the court in February, which I described at length (but considerably less length) in this prior post. The second part surrounds this 49-page order denying rehearing and certification in the case, which I described at length (again, considerably less) in this prior post.

The rub is that the court, sitting en banc, affirmed former Florida Senate President W.D. Childers's bribery convictions, whereas the original panel assigned the case would have reversed for a new trial. A retrial would have been difficult, since a principal witness (whose cross-examination was the subject of the intended reversal) had died. Questions arose first over whether the court should have heard the case en banc, and specifically whether the "exceptional importance" criterion for en banc review is met where a case's litigants, but perhaps not its issues, are exceptionally important. Judge Allen ultimately defended his vote to hear the case en banc by explaining that he believed Judge Kahn, who would have authored the panel opinion reversing the judgment, should have recused himself from the case due to an old connection between him and Childers's long-time friend (and UF Law School namesake), Fred Levin.

Judge Allen's opinion produced a bit of a brouhaha in Florida appellate circles, and Saturday's story from the Times suggested that Judge Kahn decided to step aside early as chief judge to quell discontent related to the whole affair.

I would add a few thoughts to the now very public story. I consider them important. Most so, there is no scandal concerning the initial decision. While the case is noteworthy in numerous respects, no one has suggested that Judge Kahn based his original decision on anything other than his interpretation of the law. The concerns Judge Allen voiced were related to potential public perception, based on Judge Kahn's status as an attorney at Levin's firm when Judge Kahn was appointed to the appellate bench 16 years ago, Levin's support for Kahn's application for the appointment, and Levin's ties to Childers.

Second, to whatever extent perception is some people's reality, it should be emphasized that the original panel decision was the product of two votes, not one. The appellate system distances itself from the single rulemaker model by utilizing a majority vote approach. Judge Kahn would have been one of two judges who voted to reverse Childers's conviction.

Third -- and I have come to find that many attorneys do not know this -- recusal in Florida's appellate judicial system is a matter of personal discretion with the judge in question. A motion asking an appellate judge to recuse himself or herself is to be directed to the judge, not the court, and the judge's own decision is final and not reviewable. This procedure remains the same whether the matter is raised formally by a party in the case or informally by the judge or a fellow judge.

Back In Blog
Many thanks to those who have recently been checking Abstract Appeal. I've been away -- one of those occasions when too many roads cross at once. Figuratively and literally. In the last few weeks, I ran the Chicago Marathon, helped host the first Eleventh Circuit Appellate Practice Institute, gave an appellate law update at the recent Appellate Hot Topics seminar hosted by the state bar's Appellate Practice Section, gave a presentation at a Lorman appellate seminar on what types of orders can be appealed, wrote several briefs, and provided appellate support for a trial. Plus a lot of not-so-noteworthy stuff.

Thankfully, I'm back here. It will take a bit to catch up, but I'll get there.

Wednesday, November 15, 2006
Something Worthwhile
I'll be back here soon. In the meantime I'm reminded of how precious time really is, and that thought leads me to to something truly worth a few moments of time:

Taking a look at the Justice Teaching program begun this year by Chief Justice Lewis.

The program seeks to increase students' exposure to the basic principles of our constitutional government by pairing a legal professional with every elementary, middle, and high school in Florida.

If you are passionate about our system of government and wish to share that with the young minds who will soon be responsible for continuing our great experiment, consider volunteering for this program at a school in your area.

Friday, November 03, 2006
2006 Proposed Constitutional Amendments
Election Day is next Tuesday, and Florida voters this time find themselves faced with six proposed amendments to our state's constitution. Here are some thoughts on the proposals.

Proposed Amendment No. 1. The first proposed amendment might be called the state budget amendment. If passed, this amendment would make significant changes in how Florida creates, monitors, and implements statewide fiscal policies. The proposal would place annual limits on using nonrecurring funds to pay for recurring expenditures and create a "government efficiency task force" that reports every fourth year on how to improve governmental operations and reduce costs. Most significantly, the amendment would create a budget commission that would wield exceptional power in both setting statewide budgetary policy and possibly making actual budgetary decisions without the approval of the full legislature.

That last point is highly significant. Without constitutional approval, committees cannot affirmatively speak for the full legislature. This amendment creates a commission that could make budget decisions on its own, if the legislature gives it that authority.

Is all of this positive? Perhaps. The state budget is enormous, and growing more so by the year. Constraints and restraining mechanisms appear to be useful tools in controlling "our" state funds.

Proposed Amendment No. 3. The next proposed amendment, given number three for numbering purposes, is by far the most contentious of this year's proposals. It would change only a handful of words in the constitution, but the sixty-percent vote to amend the constitution amendment would alter the criteria for making future constitutional amendments to require approval of at least sixty percent of those voting on the measure.

This proposal has brought out our state's populists, and in force. They take the highly democratic position that a majority of voters appearing at the polls should be able to make changes to Florida law, trumping the legislature where that body, perhaps beholden to certain powerful interests, fails to follow the majority's will.

Political scientists, on the other hand, probably scoff at the present system for amending our state's constitution. To my knowledge, no other constitution in the country, from our national governing document to those of our 49 fellow states, permits amendments so easily as does Florida's. The representative form of government embraced by the federal and state governments is largely intended to avoid direct majority rule, not embrace it, on the premises that the public at large, they might say, is often not sufficiently informed or motivated to govern itself effectively and that simple majorities can be oppressive.

Which side has the better argument? I have read a lot of what Florida's news and opinion leaders have had to say about this difficult subject, and I will suggest that there are two considerations that deserve more attention than they have received.

The first is that allowing voters a direct say regarding Florida law does not necessarily require that voters be able to amend the state constitution. To the extent the purpose of permitting amendments is to provide a check on a nonresponsive legislature, voters could be given the power to change the law by adopting statutes (or their equivalent), rather than changing the constitution, perhaps with constraints on the legislature's ability to repeal such items. That would still give the present public the ability to overrule the present legislature on discrete issues while keeping the people's laws, so to speak, subject to the same constitutional constraints that govern laws passed by the legislature.

After all, the legislature must respect and cannot override Florida's unique constitutional guarantees of, say, privacy, so a good argument can be made that when adopting amendments to keep the legislature in check, the people should be subject to the same constitutional controls that govern the legislature. The present system, however, allows the public to act when the legislature does not by creating laws that are more powerful than anything the legislature could ever enact. Some might say the solution is disproportionate to the problem.

Another matter that deserves consideration concerns the distinction between local and nonlocal governance. The more local a governmental unit is, the more meaningful direct majority control can be, while the less local a governmental unit is, the less meaningful direct majority control can be. Compare the effects of a neighborhood majority controlling a local town's decisionmaking with the effects of a national majority controlling the country's decisionmaking. Most people would probably agree that allowing local townspeople direct majority rule over all local town issues is by no means the same as allowing the citizens of America direct majority rule over all of our national issues. If you agree, then whether you view our state -- the fourth largest in the country, with about 18 million residents -- as more akin to a local town or to a national government will probably determine whether you believe a 50 or 60 percent majority requirement is appropriate to amend the state constitution.

Proposed Amendment No. 4. Proposed amendment number four, the anti-tobacco advertising proposal, would require the state to spend a fixed percentage of the funds the state receives from its tobacco lawsuit settlements on statewide tobacco education and prevention programs. Under the current figures, the amount this amendment would require to be spent on such programs is $57 million.

Those who support this amendment believe the state legislature has fallen short of its responsibilities in how it spends the tobacco settlement funds. Cynically, one might add that some who support this amendment stand to benefit from the annual expenditure of over $57 million.

Those who oppose this amendment seem to do so on grounds that it is unwise for the public, through a constitutional amendment, to require the legislature to spend a fixed amount of money on anything. Doing so, they say, starts us down a slippery slope of adopting budget expenditure requirements in the constitution, overriding the legislature's power to control the state's purse.

Proposed Amendments Nos. 6 and 7. The next two proposals can be discussed together. Each would increase the existing, homestead-based real property tax exemptions for certain persons.

The low-income seniors homestead exemption proposal would authorize the legislature to increase the special homestead exemption from the current $25,000 to $50,000 for those over 65 years of age with $20,000 or less in annual household income.

The disabled veterans homestead exemption proposal would create a self-executing provision that provides elderly disabled U.S. military veterans a discount on homestead property taxes based on their percentage of disability. The magnanimous nature of this provision is perhaps balanced by its narrowness -- to qualify, a person must be at least 65 years old, have been a resident of Florida upon entering the service, been honorably discharged, and been determined by the Veterans Affairs department to be disabled.

Both of these exemptions sound noble. Some oppose them, however, on grounds that such nobility is no more than disguised pandering to permit tax-cut rhetoric in the future, and that these exemptions move us down a slippery slope of providing special groups economic benefits in our constitution.

Proposed Amendment No. 8. The eminent domain proposal is a complement to the eminent domain laws passed in the last year that constrain government entities from taking private property and conveying it to private parties or individuals. The amendment would prohibit the legislature from making changes or exceptions to the law in this area except through a general law passed by three-fifths of each legislative house.

The new law and the new amendment are reactions to the U.S. Supreme Court's 2004 decision in Kelo v. New London. That decision held that the "public uses" to which property taken under to the federal constitution's takings clause may be put include development plans that allow distressed property to be transferred to private interests where doing so would provide appreciable benefits to the community. Many people believed the decision gave governments too much authority -- allowing them to take desirable urban property from poor owners and give it to wealthy developers -- and states like Florida have quickly moved to prohibit their governments from exercising such power.

If passed, the amendment is simply a restriction on the state legislature -- changing the law in the future will require a 60 percent vote by each house. If the amendment is defeated then the legislature can create exceptions to, or repeal, the new Florida eminent domain restrictions with a simple majority vote.

One final thought on the proposed amendments. Two of them involve 60 percent votes -- number 3 would require a 60 percent vote by voters to amend the constitution in the future, and number 8 would require a 60 percent vote by legislators to create exceptions to or repeal the new eminent domain laws. Yet number 3's ballot summary references approval "by at least 60 percent of the voters," while number 8's ballot summary references "a three-fifths vote of the membership of each house." Why the different ways of saying the same thing? Both proposals were created by the legislature, so one might expect some consistency -- assuming there is no difference in the language.

But perhaps there is a difference. Perhaps "60 percent" looks like less of a hurdle than "three-fifths" to some voters quickly perusing ballot summaries. So the amendment that increases the percentage of votes required from the public gets the less onerous "60 percent" language, while the amendment that increases the percentage of votes required from the legislature gets the more onerous "three-fifths" language.

Or maybe no one thought about it....

Ah, well. Those are my thoughts this morning. I do not mean to influence anyone's vote on any of these issues. These are simply my attempts to expand the dialogue a bit on the important matter of amending our state constitution. Whatever your choices, please exercise your right to vote.

Thursday, November 02, 2006
Questions, questions: False Light
This is one of the most intriguing decisions released by the Florida appellate courts in the past year. It's the First District's decision in the well-publicized false light case Joe Anderson brought against the Pensacola News-Journal. The paper allegedly published stories that implied Anderson murdered his wife and got away with it.

He first sued for defamation, but his claim was too late. The limitations period on defamation claims is two years.

So he tweaked his pleadings and recast his claim as one for false light. False light is a shorthand for an invasion of privacy tort recognized by some courts and commentators in the last half century. It requires the publication of something that places another in a highly offensive false light, where the defendant either knows of the false light or acts recklessly.

False light arguably differs from defamation. Defamation, whether in the form of libel or slander, focuses on how a published falsehood has harmed the plaintiff's reputation. False light focuses on how a published falsehood invades the plaintiff's privacy and directly injures the plaintiff. Practically speaking, in terms of proofs of liability and damages, the two can be difficult to distinguish.

The question confronting the First District was whether the two-year limitations period for defamation applied to Anderson's false light claim or if false light is governed by Florida's catch-all limitations period, which is four years.

Previously, the Second District held that false light is distinct from libel and slander and defamation's two-year limitations period does not apply to a false light claim unless the plaintiff "has a cause of action for libel or slander and alleges a claim for false light invasion of privacy based on the publication of the same false facts." The Second District determined the claim in that case did not meet the exception, and thus was governed by the four-year limitations period, because the facts published in that case were acknowledged to be true.

The First District disagreed. Somewhat. The court held that the Second District's "exception" was no exception at all. A defamation claim can be brought where the published facts are true, if they imply something false. False light is no different.

The First District then proceeded to offer numerous reasons why false light should not be treated differently from defamation for limitations purposes, although the court at one point stated: "We do not rule out the possibility that a false light claim could be based on a statement that falls short of defamation, but that is not an accurate characterization of the claim in this case." Ultimately, the court concluded with a holding apparently untethered to the claim in the case: false light claims are all governed by the two-year limitations period governing defamation claims. The court certified conflict with the Second District's earlier decision and certified the following to the Florida Supreme Court as a question of great public importance:
Is an action for invasion of privacy based on the false light theory governed by the two-year statute of limitations that applies to defamation claims or by the four-year statute that applies to unspecified tort claims?
Judge Lewis concurred in the result. He agreed with the Second District's decision and explained that this case came within the Second District's stated exception. The plaintiff had plainly attempted to avoid the defamation limitations period by recasting a defamation claim as a false light claim.

Is a false light claim really just a species of defamation? After all, defamation is a general label for various false publication claims. To the extent constraints on defamation claims are based on free speech rights, those same rights would seem to impose constraints on false light claims. The classic defamation claims, libel and slander, protect a plaintiff from the publication of false matters about the plaintiff. False light protects a plaintiff from the publication of matters that falsely portray the plaintiff.

At the same time, the creation of the false light tort appears to parallel other evolutions we have seen in the common law, and what led to the recognition of libel and slander is not what led to the recognition of false light. I am oversimplifying, but the common law has generally moved from largely protecting property rights to largely protecting personal rights. Defamation became recognized at a time when one's reputation in the community was very much a property interest. If you injured that interest wrongly, you could be held liable. Today, we view reputation more in terms of how it affects our personal mental state than as part of our inventory of personal property. So where torts such as libel and slander claims may force us to focus, awkwardly, on public reputation concerns, torts based on invasion of privacy, including false light, allow us to sue more directly for the personal affront we feel when actions injure our emotions. In this way, libel and slander are distinct from false light. Whether that distinction is meaningful on a practical level -- and supports leaving false light claims unaffected by the two-year limitations period for defamation claims -- remains to be seen.

Wednesday, November 01, 2006
Second District: ADR and Due Process
Florida law expressly permits certain parties to elect to use an alternative dispute resolution forum to resolve health insurance claim disputes. The appellant in this case made that election, and its claims, which included legal issues of first impression in Florida, were adversely resolved by a dispute resolution entity, Maximus CHDR.

As the case explains, the appellant made multiple attempts to overturn or revisit Maximus CHDR's conclusions, including arguments that Maximus CHDR failed to afford the appellant due process.

The Second District held that due process is not required in voluntary alternative dispute resolution proceedings such as the one utilized in the case.

The court did note, though, the irony surrounding the ADR entity's name, stating in a footnote:
"Maximus" may be oddly named because the process by which it resolves claims might more aptly be described as "de minimus."

Second District: Overbroad Discovery
If you have ever been on the receiving end of a request for the production of every document you rely upon to support your claims in a suit, then you will probably be interested in this decision from the Second District.

The court addressed an order requiring the petitioners either to produce the responsive materials or to detail them in a privilege log. Holding the order to be a departure from the essential requirements of law, the district court granted a petition for a writ of certiorari.

The court held that the discovery request was overbroad "because it improperly requires the Petitioners to produce documents which potentially pertain to their claim but may not be offered as evidence at trial."

The practical effects of the court's decision should be underscored. Most significantly, the decision seems to extricate a party from the unfortunate situation where counsel must hand the opposition a detailed log of every privileged document in the party's or counsel's possession, or have to produce the items themselves, merely because they support claims in the litigation.

First District: Workers' Compensation
Workers' compensation decisions are not typically noteworthy, at least for purposes of Abstract Appeal.

This decision is different.

A divided First District reversed a decision that workers' compensation recipients cannot be reimbursed by the mile for driving to and from a pharmacy to pick up medication.

The majority relied on state supreme court precedent holding that a claimant is entitled to reimbursement for mileage incurred to obtain medical treatment.

The dissent was authored by Miami-Dade Circuit Judge Scott Silverman. He argued that picking up medicine at a pharmacy is not the same as obtaining medical treatment and that the court lacked authority to craft a pharmacy mileage reimbursement right that the legislature has not adopted.

First District: Education Spending
Can a taypaying Florida citizen challenge the consitutitional sufficiency of the state's educational system, namely that the legislature has failed to make adequate provision for a uniform system of free public schools?

Yes, said the First District in this case. The court explained that the standard for determining whether the legislature has made a constitutionally adequate provision for public schools is whether the resources allocated are sufficient to provide "a uniform, efficient, safe, secure, and high quality system of free public schools that allows students to obtain a high quality education."

The court determined that the plaintiffs in the case had not brought such a claim, but rather had merely challenged the method of distribution of state education funds.

The court also pointed out that such claims cannot be brought against individual school boards -- the adequate provisioning requirement applies to the legislature, not individual school boards.

Second District: Family Law
One former spouse seeking to recover medical expenses from the other has the burden of affirmatively demonstrating the reasonableness of the expenses, and the trial court hearing such a dispute must make reasonableness findings. So held the Second District in this case.

Second District: Failure to Prosecute
If someone moves to dismiss an opponent's case for failure to prosecute but then participates in, say, discovery and a mediation, has the motion to dismiss effectively been abandoned?

In this case, the Second District said yes.

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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