Abstract Appeal -- by Matt Conigliaro

Thursday, May 14, 2009

Second District: Certiorari and Discovery Denials

Civil practitioners, add this decision from the Second District to the growing pile of modern appellate cases that utilize certiorari to review and quash a trial court order denying discovery.

Certiorari in the discovery context has long centered on "cat out of the bag" orders that require discovery to be exchanged. Once out, the proverbial cat is simply not going back into the bag, and any harm would be irreparable and should be addressed before it occurs.

Historically, we have seen rather few decisions granting certiorari petitions where a trial court refused to compel the exchange of discovery. A discovery denial may be right or wrong on its merits, but it does not cause information to be exchanged that cannot be unexchanged, and so theoretically its harm is just as correctable post-trial as it is pre-trial. So the case law told us.

Recently, however, Florida's appellate courts seem more receptive than ever to the notion that certiorari may appropriately be used to quash an order denying discovery. The Second District's recent opinion states:

Certiorari is rarely available to review orders denying discovery because in most cases the harm can be corrected on appeal.
* * * However, when the requested discovery is relevant or is reasonably calculated to lead to the discovery of admissible evidence and the order denying that discovery effectively eviscerates a party's claim, defense, or counterclaim, relief by writ of certiorari is appropriate. The harm in such cases is not remediable on appeal because there is no practical way to determine after judgment how the requested discovery would have affected the outcome of the proceedings.

(citations and footnote omitted).

Has there really been a change of course here, and if so, have courts merely changed their minds on whether the harm of discovery denied can be irreparable?

I suggest the answer to the first question is yes and the second is no, and that what is really at work involves both efficiency and integrity. More on that at another time. Meanwhile, trial lawyers, keep your appellate kin close, because a certiorari petition may be just a discovery denial away.

...posted by ⊥ 7:12 AM ⊥ #

Second District: School Employees

Government employment can lead to some legal peculiarities, such as how employees may receive immunity from the use of statements made under threat of adverse employment action for the failure to answer questions, thus leading to an employee's obligation to answer without Fifth Amendment protection.

Such lofty notions were at issue in this decision, but the Second District avoided entangling itself in them and resolved the case by deciding whether competent evidence supported a school board's decision to terminate a teacher.

...posted by ⊥ 7:05 AM ⊥ #

Second District: Sentencing

Sentencing fans -- you're out there, I know -- can have much fun with this decision from the Second District.

The court spends some time on a subject it knows much about (whether a sentence is an illegal one under rule 3.800(a)), a subject it newly encounters (whether an illegal but fully served state sentence's effect on a federal sentence can be corrected by a state court habeas corpus proceeding), and a subject it candidly admits not knowing how to resolve (whether a mechanism exists in federal court to alter a federal sentence being presently served where that sentence may have been predicated on a prior, illegal state court sentence).

The court also suggested that the public defender's office need not have been appointed to bring the appeal in this post-conviction case.

...posted by ⊥ 7:01 AM ⊥ #

Friday, May 08, 2009

Supreme Path on Children's Behalf

This week proved to be a briefwriting bonanza for me, and the fun kept me away from here and discussing this week's big news out of Florida -- the U.S. Supreme Court's order granting review of the First District's decisions in Graham v. State and Sullivan v. State.

Of course, now that the nation and even the world are interested in these cases, we can stop referring to "State" and start referring to "Florida." The high court will consider Graham v. Florida and Sullivan v. Florida this next term.

The question presented in Graham is:

Whether the Eighth Amendment's ban on cruel and unusual punishments prohibits the imprisonment of a juvenile for life without the possibility of parole as punishment for the juvenile's commission of a non-homicide.

The questions presented in Sullivan are:

1. Does imposition of a life-without-parole sentence on a thirteen-year-old for a non-homicide violate the prohibition on cruel and unusual punishments under the Eighth and Fourteenth Amendments, where the freakishly rare imposition of such a sentence reflects a national consensus on the reduced criminal culpability of children?

2. Given the extreme rarity of a life imprisonment without parole sentence imposed on a 13-year-old child for a non-homicide and the unavailability of substantive review in any other federal court, should this Court grant review of a recently evolved Eighth Amendment claim where the state court has refused to do so?

In short, both cases confront whether minors may be sentenced to life in prison without parole for a crime other than homicide.

Notably, the Sullivan decision was a per curiam affirmance, though Graham preceded it by a few months and so presumably the First District considered the issue settled. The case stems from post-conviction proceedings and the district court did not grant oral argument.

Graham, on the other hand, was a unanimously decided twenty-plus-page decision, and the First District held an oral argument. You can watch that argument here.

Graham is represented in this case by Jacksonville's Bryan Gowdy and John Mills. Bryan argued the case in the First District.

Congratulations to Bryan and John for getting this case to the high court. Perhaps Florida's Solicitor General's office will appear on the state's behalf.

These will be exciting cases to watch in the coming term. Given the breadth of interests implicated -- children, the Eighth Amendment, life sentences, international law, and The Convention on the Rights of the Child -- we can expect a cast of characters to weigh in on the issues as these cases move forward.

...posted by ⊥ 8:45 AM ⊥ #

Friday, May 01, 2009

Law Day

Today is Law Day. To help promote it, I had the good fortune to speak last week to two history classes at a local high school. I always enjoy speaking with students about the law -- they pay attention and always have terrifically interesting questions about how the law can impact their lives. I do my best to answer, but sometimes the questions are awkward and make you wonder how youthful these youths really are.

For instance, one student last week essentially asked: "If you're from another country -- say, France -- and you commit a terrible crime there and then come to America, what will they do to you?" Another asked something like, "If there's a warrant to arrest someone in Florida but the person moves to Georgia and no one there arrests him, can you get the Georgia police in trouble?" I hope the students were making these situations up, but I doubt it.

Speaking of students, a few years ago I told a story here about a Law Day-related oral argument I once had. Long-time visitors to Abstract Appeal may recall it, but I will retell it anyway. Here goes:

I will not mention the year or the court, but this story involves one of Florida's district courts of appeal. Each year, the district courts hold oral arguments in each of their respective circuits. Typically, oral arguments away from a district's seat take place in county or circuit court buildings, and sometimes the district courts liven things up a bit by inviting local school children to attend the session. That is especially true around Law Day. By inviting local students to attend an "away" session, the district court can visit a circuit, bring the public into the courtroom, and promote Law Day. Everyone wins.

Well, not everyone. Picture me in early May in one of Florida's beautiful rural courthouses. The weather was perfect. The courthouse was majestic. I stood before a panel of district court judges to deliver an oral argument, flanked by a gaggle of school children no doubt eager to hear about my interesting case. Factually, it was an interesting case, which is why it was selected for the event, and I was asked in advance if I would not mind waiting around afterwards to answer any questions the students might ask.

The appellant's argument had been unremarkable. The panel was rather quiet, asking very few questions. When you represent the appellee in that situation, you hope the judges are being pensive or are tired -- and not that they are waiting to unleash a fury on you when it is your turn to argue. My turn came and I began to defend the trial court's eminently correct rulings. I was immediately hit with a hostile question. And another. And another. Most were from one judge who made clear that he did not agree with me or my client, notwithstanding the sincerity behind my arguments. A couple of times, the judge shook his head and just said he saw things differently than the trial court and I saw them. It was 20 minutes of back and forth. Given that he was the judge, his forth was a lot more powerful than my back.

At the end of the oral argument, the court asked the school children if they had any questions. They were probably in the third or fourth grade. A young man had a question. He stood up, looked right at the judge who had hammered me and said, "Do you always make up your mind before you get here?"

I tried to hold back a smile.

Tried.

Needless to say, I lost that appeal, but I still smile when I think about that question.

...posted by ⊥ 9:40 AM ⊥ #

Untimely

If you follow national legal news, you probably learned from items like this one about Mark Levy's apparent suicide yesterday morning. Mark headed up the appellate group at Kilpatrick Stockton in Washington D.C.

I did not know Mark well but I was part of the planning committee that created the first two installments of the Eleventh Circuit Appellate Practice Institute, and Mark joined us for the Atlanta program in both 2006 and 2008. He spoke on class action appeals as part of the civil program in 2006 and on briefwriting in 2008.

One night during the 2006 program, I hitched a ride with him to dinner at the Highland Tap. I was planning a D.C. trip at the time and he was filled with suggestions and tales of the town. He struck me as both gentleman and scholar. If you attended either program, perhaps you recall him.

...posted by ⊥ 9:06 AM ⊥ #