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Friday, September 28, 2007
Property Tax Reform: Amendment Off Ballot
I have been out of town the last several days, leaving me until now unable to discuss this week's big story: the ruling by a Leon County Circuit Judge that the ballot summary for the proposed constitutional amendment to overhaul the property tax system is sufficiently misleading and confusing to invalidate the proposal.

The court ordered the Secretary of State to take the measure off the January 2008 special election ballot.

This development is of extraordinary importance to those who own and live in Florida homes. The so-called "Save-Our-Homes cap" has been in place in Florida for over a decade, and it protects those whose property qualifies as homestead from annual increases in taxable value over three percent. It is not exactly a cap -- the mechanics are slightly more complex -- but it effectively functions as a cap on how much the taxable value of a particular home can increase each year. The bottom line is that, under the existing Save-Our-Homes protections, tax bills on a particular homestead property do not increase exponentially each year, even if the market value of the property does.

As part of a package of property tax reforms, the Legislature this year passed this proposal to amend the state constitution and revamp the property tax system. The proposal is complex, to be sure. It leaves the Save-Our-Homes protection in place for those who currently receive its benefits, but it eliminates that protection for newly acquired properties and for anyone who elects to abandon that protection in favor of the new tax system. The new system, sometimes referred to as including a "Super Homestead Exemption," involves a series of exemptions and deductions for homestead property owners but no Save-Our-Homes-like limit on increases in a property's taxable value. It appears the new system should, at least at first, lead to lower property taxes than homeowners would enjoy under the Save-Our-Homes protection.

The Mayor of Weston, presumably unhappy that the new property tax scheme (which is larger than the homestead issue) will lower municipal property tax revenues, filed a suit against the Secretary of State. Among other things, the suit claimed that the ballot summary the Legislature drafted for voters to read when voting on the proposed constitutional amendment is unlawfully misleading. Here is what the Legislature's proposed ballot summary, which voters would see on the ballot, says:

AD VALOREM PROPERTY TAXATION: ASSESSMENTS, EXEMPTIONS, LIMITATIONS, AND HOMESTEADS.--Proposing amendments to the State Constitution to increase the homestead exemption from $25,000 to 75 percent of the just value of the property up to $200,000 and 15 percent of the just value of the property above $200,000 up to $500,000, to subject the $500,000 threshold to annual adjustments based on the percentage change in per capita personal income, to authorize an increase in the $500,000 threshold amount by a two-thirds vote of the Legislature, and to specify minimum homestead exemption amounts of $50,000 for everyone except low-income seniors and $100,000 for low-income seniors; to provide for transitional assessments of homestead property under the increased homestead exemption that include preserving application of Save-Our-Homes provisions until an irrevocable election is made; to revise Save-Our-Homes provisions to conform to provisions providing for the increased homestead exemption and transitional assessments of homestead property; to require the Legislature to limit the authority of counties, municipalities, and special districts to increase ad valorem taxes; to authorize an exemption from ad valorem taxes of no less than $25,000 of assessed value of tangible personal property; to provide for assessing rent-restricted affordable housing property and waterfront property used for commercial fishing, commercial water-dependent activities, and public access at less than just value; and to schedule the amendments to take effect upon approval by the voters and operate retroactively to January 1, 2008, if approved in a special election held on January 29, 2008, or shall take effect January 1, 2009, if approved in the general election held in November of 2008.
The Mayor argued that this summary is fatally confusing and misleading, and should not be presented to voters, because it does not explain that the Save-Our-Homes protection is being eliminated in favor of a new system and instead suggests Save-Our-Homes is being kept in place. The circuit court agreed.

Specifically, the circuit court concluded that while the ballot summary mentions preserving and revising Save-Our-Homes, under the new system, "the constitutional protections currently provided will not be preserved for anyone who is not entitled to the homestead tax exemption on the effective date of the amendments. They also will not be available to anyone who sells or transfers their homestead after the effective date of the amendments. They will only be preserved for those who currently enjoy them and who do not choose to surrender those protections by making the 'irrevocable election'. Furthermore, for those who do not make the 'irrevocable election,' the protections currently being provided are not revised, but remain absolutely the same."

You can read the full order here. (You might note that the Mayor lost on a second issue raised in the case -- whether the Legislature had the power to adopt a series of limits on municipalities' authority to collect certain taxes.)

On Wednesday, the state appealed the circuit court's decision to the First District.

Also, yesterday, the Tallahassee Democrat explained in this story that the Legislature is considering revising the proposed ballot summary at a special session next week.

This story is far from over...

Monday, September 24, 2007
Pardon Power
Once in a while, a decision seems to reach the wrong result, not in the sense the court misapplied the law, but in the sense the law sometimes does not produce a just result in a particular circumstance.

Many saw things that way when the Second District released this decision, including perhaps the court itself. But the court's job is to interpret and apply the law, and the law at issue in the case was Florida's relatively inflexible statutory sentencing scheme.

The case involved a wheelchair-confined man convicted of seven counts of drug trafficking and sentenced to 25 years in prison. His offenses were predicated on forged prescriptions used to obtain drugs to treat his own pain. In its divided decision, the Second District affirmed the convictions and sentence.

I blogged at some length about the case in this prior post.

The case has now made headlines again because, last week, Governor Crist pardoned the man. Read about it in this story from the St. Pete Times.

One of the Governor's most spectacular powers is the power to pardon persons for criminal offenses. This case surely seems to qualify as spectacular.

Wednesday, September 19, 2007
Battle of the Chairs
Peeking at the Florida Supreme Court's oral argument calendar, an interesting argument is slated for tomorrow. It is not a litigation case. It is a rules amendment matter. And, yes, a rules proceeding can be interesting -- at least to an appellate lawyer.

You may recall that, in 2006, the Legislature adopted this statute, which addresses stays of final judgments in civil cases. The new law caps at $50 million the amount necessary to post a supersedeas bond and further allows trial judges discretion in certain instances to reduce the supersedeas bond amount in the interests of justice and upon a showing of good cause.

Supersedeas bonds have long been governed by the appellate procedure rules, most recently Florida Rule of Appellate Procedure 9.310. The rule in essence provides that, for money judgments, a supersedeas stay can be obtained by posting a bond in the amount of the judgment plus two years' interest. The new statute in effect allows that amount to be relaxed in particular cases.

Historically, when the Legislature changes Florida law in a manner that conflicts with Florida's procedural rules, the appropriate rules committee and the state supreme court will consider amending the procedural rules to eliminate the conflict. In that way, the Appellate Court Rules Committee might have drafted and submitted to the supreme court proposed amendments to rule 9.310, to make the rule conform to the new statute.

That did not happen. The state-wide plaintiffs' lawyers advocacy group, which recently changed its name to the Florida Justice Association, took a strong position that the new statute is unconstitutional. The FJA sees its members and clients as harmed by stays predicated on bonds below the traditional full amount plus two years' interest, and it views the new statute as infringing on the supreme court's procedural rulemaking authority, thereby violating the constitutional separation of powers.

Whether that view is correct is an interesting legal issue. It is also an issue that would be moot if the state supreme court were to amend the procedural rules to conform to the statute. After all, if the court's procedural rules mimic the legislature's statutory scheme, then it is an unnecessary academic exercise to decide whether the legislature had authority to adopt the statute. Many will note that this same rationale explains why the evidentiary statutes in chapter 90 have long been adopted, verbatim, by the Florida Supreme Court. The high court typically makes such adoptions "to the extent" the evidence statutes are procedural, without opining on the extent to which the evidence code is substantive or procedural.

When the issue of proposing an amendment to rule 9.310 came before the Appellate Court Rules Committee, many on the committee doubted the statute's validity or otherwise took the view that the constitutional issue raised by the FJA should not be mooted by the adoption of a procedural rule. The committee considered a proposed amendment to the rule but voted 45-7 against presenting any amendment to the supreme court. The minority favored the proposal the committee considered.

The committee sent this report to the high court, informing it of the vote and the amendment the committee otherwise considered. The supreme court then entered an order inviting public comments on the matter and directing both the majority and minority from the committee to respond to the comments and participate in oral argument.

The FJA's comments, opposing the amendment, are available here.

One attorney filed comments in support of the proposed amendment, with an additional change. Those comments are available here.

The committee's majority and minority then responded. The majority's response is available here, and the minority's response is available here.

The argument relating to whether or how to amend rule 9.310 will be held tomorrow at the state supreme court. According to this document, the person who chaired the committee last year (when the events described above took place) will argue the minority position, and the current chair of the committee will argue the majority position.

A battle of the chairs.

The above account simplifies things just a bit, including the passion some bring to these matters and the nuances of the competing views, but hopefully I have provided an overview of the goings-on in this particular area.

I expect to see a lively argument tomorrow.

Second District: Resourceful
Add Wiktionary to the list of Internet-based authorities Florida courts have relied upon in their decisions. The Second District cited the ever-evolving online dictionary in this decision. A Florida first.

Second District: Attorney-Client Privilege
If an insurance policy's terms require an insured to submit to an examination under oath, can the transcript of the examination be protected by the attorney-client privilege? What if the insured refuses to answer some questions to avoid self-incrimination and the proceeding is somewhat adversarial? Privileged, said the Second District in this interesting decision that advances Florida law where privilege and insurance meet.

Second District: A Bit Bothered
The footnote on page two of this opinion gently criticizes a party for failing to file an answer brief.

The appellee actually initiated the appellate proceeding but failed to file an initial brief. That prompted the Second District to dismiss the appeal and convert the case's cross-appeal into the only appeal. The initial appellant, now appellee, then decided not to file an answer brief. That's failing to file two briefs in the same appellate proceeding.

The footnote was kind.

Second District: Rules Suggestions
Members of the Criminal Procedure Rules Committee may wish to take note of the Second District's suggestion in this case that the committee consider whether the rules should be amended to address the requirements of the Interstate Agreement on Detainers Act.

Monday, September 17, 2007
Certified Conflict: Impact Rule
Florida follows the so-called "impact rule" with respect to negligence claims. An exception to that rule set forth by the state supreme court can be triggered where a "close personal relationship" exists between a physically injured person and a plaintiff who wishes to recover for emotional injuries associated with the other person's physical injuries.

But what is a close personal relationship? Is it a formal legal relationship? Do step-parents and step-children count? The First District addressed these questions in this case and reversed a summary judgment in favor of the defendant. The court certified conflict with decisions from two other district courts of appeal that apparently required formal legal relationships to meet this exception to the impact rule.

By the way, I seem to recall that the state supreme court has been working for some time on at least one case that would seem to call for a soup-to-nuts examination of the impact rule and its vitality under Florida law. Whatever the court decides, I hope it begins its analysis with the duties Florida law places on all persons with respect to all other persons and when an act that does not physically injure another is a breach of such duties. In my view, many cases have inartfully focused the discussion on the damage element of negligence claims, rather than the duty and breach elements, leading to much confusion and a general difficulty applying reported decisions to new sets of facts.

First District: Preservation of Error
In this decision, the First District rejected as unpreserved an argument that a dissolution judgment lacked sufficient findings to permit meaningful appellate review.

That decision speaks to an issue that arises from time to time in appellate practice: where a final judgment reflects an error that could be addressed for the first time only in a motion for rehearing, must an adversely affected party seek rehearing to preserve the error for appeal? Appellate fans, pay attention.

First District: Final Judgments
Do you have a "final judgment of conviction" when the trial court has concluded an adjudication of your guilt or only when you have exhausted your appellate rights? Well, if you have been found guilty of murdering someone whose life insurance benefited you, then for purposes of the statute prohibiting you from collecting those benefits, a final trial court judgment qualifies as a "final judgment of conviction." The First District reached that conclusion in this case.

The decision seems to suggest that if the life insurance proceeds are distributed to someone else and the defendant is later acquitted, then the defendant can only try to obtain the money from whoever received it.

First District: Equal Protection
Under Florida's workers' compensation statutes, an unrepresented claimant who reaches a washout settlement is entitled to a 20 percent additional payment if the negotiated payment is not paid within seven days of its due date. A represented claimant receives no such automatic increase.

In this case, the appellant (well represented, naturally) argued that scheme violates the constitutional right to equal protection. The First District disagreed. I found of interest the court's discussion of the standards applicable where an equal protection challenge is brought against a statute that impacts neither a suspect class nor a fundamental right:
Under this minimal level of scrutiny, the appellant bears the burden of demonstrating that the statutory distinction at issue in this case has no rational relationship to a legitimate state purpose. The appellees have no obligation to prove that the legislature’s assumptions about the benefits of the statutory distinction at issue would be realized, nor does such evidence have to be present in the record for the legislation to survive the challenge. Indeed, even if it appears that the legislature has made an improvident, ill-advised, or unnecessary decision, the law must be upheld if there is any state of facts that may reasonably be conceived to justify it. A determination of whether a rational basis exists is not subject to courtroom fact-finding and may be based on rational speculation unsupported by evidence or empirical data.
In other words, the court can reject the challenge even if the opponent has presented no meaningful defense of the legislature's classifications.

First District: Workers' Compensation
Workers' compensation fans and those interested in toxic torts may wish to check out the First District's decision in this case. The court reversed a judge of compensation claims's decision not to award benefits to a claimant who had suffered beryllium dust exposure but had not yet developed chronic beryllium disease. The claimant asserted a prolonged exposure theory, and the court determined that his immunological response to beryllium exposure -- the development of leukocytes that respond to beryllium -- and his resulting need for periodic monitoring give rise to an injury for purposes of a prolonged exposure claim.

Second District: Outrageous Conduct
Those interested in the tort of intentional infliction of emotional distress may wish to check out the Second District's decision in this case. The court held the plaintiff met the rather high standards for stating an IIED cause of action.

Second District: Mandamus
This decision from the Second District reminds us that court-appointed attorneys are public officials for purposes of the writ of mandamus.

Back in Blog
I was out of town last week and, Monday aside, found myself unable to access the Internet with my laptop, leaving me unable to blog. With a very late arrival last night into what is now sunny St. Pete, I'm back.

Monday, September 10, 2007
Chief Judge Browning: Minor Miranda Problem
Chief Judge Browning would like to see a change in how the law allows minors, by themselves, to waive their Miranda rights. As he explained in a concurrence in this case:
I think the law should be changed to provide that a minor may not waive Miranda rights unless the minor’s attorney, a parent, or a legal guardian consents to the waiver. The law should not sanction a situation, such as here, where a minor is questioned in the presence of his parent and denies committing the crime he was convicted of, but is later removed from the public school system, without either of his parents' knowledge, and is taken to the police station, where he purportedly waives his Miranda rights under questioning without the minor's parent's, attorney's, or legal guardian's consent and confesses to the crime. The law should not sanction such a waiver, for all of the reasons society limits a minor's right to contract, drive, drink, serve in the military, etc.
The court affirmed the judgment below without a written opinion, prompting the chief judge to conclude his concurrence by saying, "I concur with the majority opinion as a distasteful duty."

Fourth District: Custody and Mental Health Records
If one of two divorcing parents is a recovering alcoholic, and their litigation fight includes a custody battle, can the other spouse obtain the recovering alcoholic's mental health records, on the theory the decision to pursue custody places mental health in issue?

No, said the Fourth District in this decision.

Fourth District: Judicial Disqualification
Should a trial judge grant a motion a recuse that alleges opposing counsel represents the trial judge's girlfriend in another matter?

The Fourth District has the answer here.

First District: Conversion
A funny thing about intentional torts: you can be found liable for them as a matter of law. It happened in this decision, where the First District held no competent substantial evidence supported a finding the defendant did not commit a conversion of the plaintiff's property.

First District: Final Administrative Orders
When is an administrative order final? Generally, it is when the order is filed with the agency's clerk, as occurred in this decision from the First District.

First District: Temporary Injunctions
Temporary injunctions require some detail. In this case, the First District reversed a temporary injunction, holding such an order "must contain more than conclusory legal aphorisms if it is to be subject to meaningful appellate review."

First District: 40 To Life
Florida's habitual felony offender statute allows trial courts to deviate upward, but not downward, when selecting a sentence. The HFO who received 40 years in this case from the First District, when an HFO sentence for him could only have been life, had his sentence reversed and the HFO adjudication stricken.

Fourth District: Child Support
In this case, the Fourth District addressed a trial court's review of recommended orders by child support enforcement hearing officers. The appellant asserted that the trial court must listen to the electronic recording of the entire proceeding before the hearing officer. The district court disagreed, holding the person seeking review should provide a transcript in accordance with rule 12.491.

Tuesday, September 04, 2007
Columnist: Anti-PCA Pressure
I have seen answer briefs signal to a district court of appeal that a PCA -- a per curiam affirmance without a written opinion -- is in order.

I do not, however, recall seeing a newspaper columnist lobby a district court against a PCA.

Until today.

Today's St. Pete Times contains this column by Howard Troxler on a recent case from Pinellas County that argues Florida's property tax system violates the federal constitution. The trial court dismissed the complaint and the plaintiff has now appealed to the Second District.

Troxler does not seem to expect a reversal, but he finds the whole subject so entertaining he hopes the court does not issue a PCA. If it does, he says, it is a court of, well, you can read it yourself.

Fifth District: Preemption Conflict
Preemption fans may be interested in this decision from the Fifth District. The court held that chapter 791 of the Florida Statutes does not wholly preempt the field of fireworks and preclude local regulation.

The court also determined that certain Brevard County fireworks ordinances conflicted with state law were thus invalid, including a provision that required those selling fireworks to maintain certain minimal levels of insurance. The court acknowledged that another district recently held a similar Pinellas County ordinance constitutional, and the Fifth District expressly disagreed with that other court's reasoning. No conflict was certified.

Fifth District: Injunctions
In this case, the Fifth District clarified how it reviews preliminary injunction orders. The court acknowledged that its prior case law could be read to say that in the absence of a motion to dissolve a preliminary injunction, the appellate court would not address its underlying factual sufficiency. The court explained that approach applies only in the context of ex parte injunctions, not injunctions entered after notice and a hearing.

The decision, authored by Judge Sawaya, included the following footnote:
As the author of Yardley, I confess the error, which is mine alone. My error, which resulted from not taking the time to more carefully analyze the pertinent case law, is reminiscent of the mistake made by the wayward traveler that caused him to fall off the cliff while trying to make his way to the bottom of the ravine—although he landed on the very spot of his intended destination, he lamented the fact that he did not more closely read the detour sign that would have directed him to safer passage. Because the result and legal analysis in Yardley are correct, it has been suggested that my error is analogous to instances where the tipsy coachman rule is applied. However, I would prefer to avoid any comparison to a buggy that arrived at its intended destination because it was pulled by a horse that had more sense than the drunken coachman. Although some may consider the analogy quite apt, I would prefer the former over the latter for the obvious reasons.
Certainly noteworthy.

Fifth District: Workers' Compensation
Is an employer that raises a pre-existing medical condition defense to a worker's compensation claim estopped from asserting worker's compensation immunity in a subsequent tort action? The answer was no in this decision from the Fifth District, where the claimant dismissed the workers' compensation claim after an initial denial of benefits but before the claim was finally adjudicated. The court explained that employees should not be permitted to "jump the gun" and file suit in circuit court when an employer raises a pre-existing condition defense.

Fifth District: Fraud on the Court
The standard for dismissing a case based on fraud in the course of litigation is a high one, as this decision from the Fifth District shows.

Reversing a dismissal order, the district court recognized an inconsistency between the plaintiff's discovery responses and the later-documented actual facts. Nonetheless, the court held that the responses did not clearly rise to the level of fraud on the court and that the inconsistencies could be raised during trial.

The district court concluded, "This is a case where allegations of inconsistency, non-disclosure, even falseness, can be brought to the jury's attention through cross-examination or impeachment."

Fifth District: Alimony
Family law fans may be interested in this decision from the Fifth District. The court reversed a final dissolution judgment that did not reserve jurisdiction to award permanent periodic alimony in the future. The court was concerned a sale of a marital residence might not yield what it was expected to yield.

Perhaps this decision is an example of how the housing market's recent dip might affect family law cases. The house was located in Ohio.

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