Abstract Appeal -- by Matt Conigliaro

Tuesday, September 30, 2003

DNA Deadline Ordered Extended. Today, the Supreme Court of Florida indefinitely extended the October 1, 2003 deadline for DNA testing under Rule 3.853 of the Florida Rules of Criminal Procedure and § 925.11(1)(b)1. According to the order, which you can read here, the extension is to permit the court to consider pending petitions challenging the deadline as unconstitutional.

Two important points:

First, here's the essence of what's going on. The rule and statute opened a two-year window during which convicted persons could apply for free DNA testing if it might exonerate them of their crimes. The window closes tomorrow and with it goes the requirement that DNA evidence be kept. The court's order prevents destruction of DNA evidence while the court considers petitions challenging the constitutionality of the two-year deadline.

Second, there is a substantial disagreement among the court's justices over whether the court has the authority to do what it did today. Three of the seven justices signed on to a vigorous dissent, written by Justice Wells, which maintained that Florida's Constitution does not permit the court to halt the expiration of the statutory window. Instead, Justice Wells asserted, only the Legislature can extend the deadline, and only a trial court can enjoin the destruction of evidence.

...posted by ⊥ 8:39 PM ⊥ #

Find Someone Dead? Just Report It. There's no sign of murder in the case of a Satellite Beach woman who placed her dead husband's body in their garage and left him there for two weeks, according to this story from the Bradenton Herald. The story notes that the woman may still be charged with failing to report her husband's death.

Did you know there's a law on that? Florida requires that deaths be reported to the local medical examiner in many cases, depending on the cause of death. You can read the statute listing the circumstances under which deaths must be reported (e.g., accident, suicide, criminal violence) here, and you can read the statute that requires reports to be made here.

...posted by ⊥ 1:34 PM ⊥ #

Cleaning For Time. With his sentencing just over a month away, a Seminole County man found guilty of felony littering for the condition of his yard has been given permission to leave jail during the daytime -- but only to clean up his yard, according to this story from the Orlando Sentinel. Any cleaning he does may affect the severity of his sentence. During his trial, the man claimed that his yard's condition was a constitutionally protected political protest.

...posted by ⊥ 8:53 AM ⊥ #

Adding Judicial Weight… If you're following the news on the suicide that's supposedly going to occur at a rock concert this weekend in St. Pete (see several posts below), you'll be interested to know that yesterday a trial court enjoined promotion of the show until a hearing can be held Thursday. Read about it here in today's St. Pete Times.

...posted by ⊥ 8:10 AM ⊥ #

Monday, September 29, 2003

To the Top! The publisher of the Florida Alligator is taking the Dale Earnhardt autopsy photo case to the United States Supreme Court, according to this story tonight from the AP. I will definitely be having more on this later.

...posted by ⊥ 6:35 PM ⊥ #

But Apparently Not Difficult Enough… The AP reports here that the band intends to go forward with the show, albeit as a private one, at an as-yet-undisclosed location in St. Pete.

...posted by ⊥ 6:29 PM ⊥ #

Suicide Stunt Gets More Difficult. St. Petersburg's city council passed a law today that prohibits conducting a suicide for entertainment purposes, as well as hosting or promoting such an event. The new law, detailed in this on-line story from the St. Pete Times, is meant to help stop an alternative rock band from carrying through with its announced intent to stage a terminally ill person's suicide at a St. Pete concert this weekend. You can read an earlier post giving more info on this story here.

...posted by ⊥ 2:10 PM ⊥ #

More On Invasions of Privacy. Craig Williams, of the May It Please The Court blog, has wondered aloud about my thoughts on the Florida Supreme Court's recent decision in this case, where the court held that allegations of offensive touching do not state a claim for invasion of privacy under Florida law. You can read Craig's post here. In short, Craig makes the commonsensical observation that unwanted physical touching sure sounds like an invasion of privacy. Here's a somewhat brief response.

In a sense, Craig's right. Many people would consider unwanted physical contact to be an invasion of their privacy. But we're not discussing everyday parlance here -- we're talking about carefully defined common law causes of action. Many people would consider a clenched fist to the jaw to be an assault, but they'd be wrong, at least with respect to how we define common law claims. Legally speaking, an assault is basically putting someone in fear of unwanted, imminent physical contact. The contact itself is a battery. So if you see the fist coming, that's an assault. If it hits you, that's a battery.

Common law claims have long been an evolving set of concepts. Florida's Supreme Court first recognized a common law cause of action for invasion of privacy in 1944. The case involved a publication that exposed very private facts about a person to the public. No existing common law claim covered the situation, and so the court, perceiving an injustice that required a judicial remedy, expanded Florida's common law to include the tort "invasion of privacy."

The case decided just over a week ago involved physical touching. The defendant in the case wanted the plaintiff's claim to be seen as a claim for invasion of privacy because his insurance policy covered that tort. Skipping through the case's convoluted procedural history, when the Florida Supreme Court was presented with the question of whether unwanted physical touching constituted an invasion of privacy, the court said no. Invasion of privacy includes four things: (1) unauthorized use of a person's name or likeness, (2) physically or electronically intruding into one's private quarters, (3) public disclosure of private facts, and (4) publicly portraying someone in a false light. The "private quarters" mentioned in (2) do not mean a body part. The court explained that it did not create the invasion of privacy tort to be duplicative of other torts. Presumably, the court was thinking of battery, since the touching at issue in the case was almost surely a battery.

The bottom line is that the court made a policy decision not to expand a rather recently developed common law tort to cover something that a long established tort already covered. By the way, my original post on this case, which went into none of this detail, is here.

...posted by ⊥ 8:27 AM ⊥ #

More Schiavo. Mary Jo Melone's weekend column covered the case as well.

...posted by ⊥ 7:36 AM ⊥ #

Schiavo News. More today on the Terri Schiavo saga from the St. Pete Times, which has this story. It highlights how some people have misdirected their feelings over the case.

...posted by ⊥ 7:24 AM ⊥ #

Saturday, September 27, 2003

So Everyone's Able. In the opening paragraph of this decision released yesterday by the Fifth District, the court stated that it agreed with the decision of "the able trial judge." Interestingly, the trial judge in the case was Judge Vincent Torpy, who has since been appointed to the Fifth District. (No, he wasn't on the panel in this case.) That's amusing, but not as amusing as this footnote in Judge Winifred Sharp's dissent:

I too agree with the majority that this trial judge, and all of our trial judges, are "able," but I respectfully differ in my interpretation of the statute.

Sounds like a partial concurrence…

...posted by ⊥ 9:36 AM ⊥ #

Settling for Ice Cream. The AP has this story on the settlement of a Broward County class action brought against an ice cream manufacturer for mislabeling the fat content in the product. Under the settlement, class members can receive -- what else? -- free ice cream.

...posted by ⊥ 9:26 AM ⊥ #

The Price of Ambulance Chasing. The Florida Bar's ethics battle with an attorney over using a "runner" to solicit clients is described in this story in today's Tallahassee Democrat.

...posted by ⊥ 8:54 AM ⊥ #

Fifth District: Timely Unemployment Appeals. The Fifth District appears to be sticking with the position that where an unemployment compensation applicant swears never to have received a determination denying an application, and thus seeks to bring a belated appeal from the determination, the date printed on the determination is not, standing alone, competent evidence from which it can be determined that the determination was mailed on that date. You can read the court's latest decision on this here. Generally, a person has 20 days to appeal from the date on which an adverse determination is mailed.

...posted by ⊥ 8:36 AM ⊥ #

Fifth District: Notetaking. This decision yesterday from the Fifth District reminds us that criminal trial judges have broad discretion in determining whether to allow jurors to take notes or submit questions to witnesses.

...posted by ⊥ 8:27 AM ⊥ #

Friday, September 26, 2003

Ouch. Mike Thomas, columnist for the Orlando Sentinel, has this piece today offering some harsh criticism of the recent public appearance of the mother of the Orlando-area retarded woman who, after being raped while in state care, recently gave birth. The daughter made national headlines when Governor Bush and others unsuccesfully pushed for the appointment of a guardian for her then-unborn child. Now the mother -- who apparently hasn't seen the daughter in years and had her parental rights terminated by the state in 1995 -- is making headlines because she's arrived on the scene just in time to try to sue the state on her daughter's behalf.

...posted by ⊥ 8:09 AM ⊥ #

Blog Threats Are Outside School's Jurisdiction. Today's Times-Union has this story on how Duval County school officials have determined that a student's web log comments threatening another student cannot be the subject of school board discipline. The board apparently concedes that it cannot punish students for anything they do, anywhere -- including home and the Internet.

...posted by ⊥ 7:41 AM ⊥ #

Homeowners Association Still An Oxymoron. I previously mentioned in this post the pending sale of the home of the Jupiter man whose front yard flag flying brought out the worst in his local homeowners assocation. None other than the association is foreclosing on the property to collect its legal bills from the flag fight. Well, according to this story in this morning's Jupiter Courier, the sale is on hold while the man and Attorney General Crist appeal whether the home is protected from sale under Florida's homestead laws.

By the way, the story mentions that this dispute last year prompted the Florida Legislature to pass a law permitting flag flying despite homeowners association rules to the contrary. You can read that law here (look at subsection (3)).

...posted by ⊥ 7:23 AM ⊥ #

Thursday, September 25, 2003

Eleventh Circuit: Arbitration Agreements. The Eleventh Circuit decided this arbitration case today. Can you tell from the tone of the opening paragraph how it turned out? Try:

This is another arbitration dispute in which the parties are litigating whether or not they should be litigating. The familiar scenario is that the parties agree in writing to arbitrate any disputes between them, but then one party files a lawsuit taking the position that the agreement to arbitrate is inapplicable, invalid, or unenforceable for one reason or another. Here the plaintiff contends the agreement to arbitrate does not cover his federal statutory claims, is unenforceable because he cannot afford to arbitrate, and is invalid because it does not afford him the remedial relief to which he is entitled under the statutes.

As you may have guessed, the case is headed to arbitration. Note that the court disposed of the second issue based on the defendant's offer to pay the arbitration costs to the extent necessary to make things fair for the plaintiff. Brilliant.

...posted by ⊥ 11:20 PM ⊥ #

Supreme Court. Finally, in this case, the Supreme Court held that a negligently made misdiagnosis does not itself constitute concealment of the misdiagnosis for purposes of § 95.11(4)(b), which extends the usual 4-year statute of repose on medical malpractice claims to 7 years when "fraud, concealment, or intentional misrepresentation" prevents discovery of the injury. Concealment doesn't exist absent intent to conceal. Interestingly, the court's decision was unanimous.

...posted by ⊥ 11:05 PM ⊥ #

Supreme Court. Today in this case, the Florida Supreme Court reinforced the limits on a district court's reviewing authority when conducting a second-tier certiorari review. Perhaps more interestingly, the court took a moment to note that granting relief on a petition for writ of certiorari means simply quashing the order on review and not directing the lower tribunal to take some action. There's nothing terribly new there, but it's a point often overlooked. The district courts regularly issue writs of certiorari and, in doing so, order various actions to occur in the lower tribunal.

...posted by ⊥ 10:32 PM ⊥ #

Supreme Court. This week's offerings from our high court include this decision, in which the court held that a trial court has discretion in whether to stay a plaintiff's claim under FUFTA, the Florida Uniform Fraudulent Transfer Act, while the plaintiff pursues a claim that, if successful, will make the plaintiff a creditor of the defendant. The court disapproved a Third District decision that required a trial court to stay a FUFTA action until the plaintiff obtains a judgment against the defendant.

...posted by ⊥ 8:50 PM ⊥ #

Schiavo News. Well, not news -- a column. St. Pete Times columnist Mary Jo Melone's thoughts today on the Terri Shiavo saga are worth reading. Check out her column here.

...posted by ⊥ 8:15 AM ⊥ #

Great Idea. This has little to do with law. It's just neat. According to this story in today's Palm Beach Post, the Palm Beach County Sheriff has started installing message boards in the rear windows of patrol cars. They can flash messages like "school zone" and "slow down." The story suggests that the cars must be stopped or parked to display messages, but the possibilities for the signs seem far more interesting if the vehicles can flash messages while moving…

...posted by ⊥ 7:53 AM ⊥ #

Not So Fast. The presidents of Florida's universities have joined the chorus calling for the repeal of a Florida law enacted last year that permits Florida high school students to graduate a year early, according to this story in today's Florida Times-Union.

...posted by ⊥ 7:38 AM ⊥ #

Eleventh Circuit. In this decision released yesterday by the Eleventh Circuit, the court set out to clarify how to analyze whether a plaintiff's claim filed in state court is subject to super preemption under ERISA, the Employee Retirement Income Security Act, and thus whether the case can be removed to federal court. In this particular case, the court held that a former employee's claims were not super-preempted and therefore removing the case from state court to federal court was improper for lack of federal jurisdiction.

Perhaps most noteworthy about the decision is that, in a footnote, the court refused to consider the defendant's argument, first raised "tardily" on appeal, that removal was appropriate because the federal district court had diversity jurisdiction. The court acknowledged that the argument may be correct but held that the defendant had the burden of setting forth the jurisdictional basis for removal in the notice of removal.

...posted by ⊥ 7:14 AM ⊥ #

Fourth District. Including simple burglary as a predicate offense for purposes of Florida's violent career criminal statute permits persons with prior convictions for burglarly of an unoccupied conveyance to receive enhanced sentences for subsequent offenses. If you've thought this might be unconstitutional because such burglaries aren't necessarily violent, you'd better read this decision yesterday from the Fourth District. (The court rejected the argument.)

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Fourth District. Can a trial court condition a substitution of attorneys on the client's payment of the former attorney's bill? Not always. For an explanation of the applicable rule and some exceptions, check out this decision yesterday from the Fourth District.

...posted by ⊥ 6:32 AM ⊥ #

Debating Abatement. That's what the Second District found itself doing yesterday in this tobacco lawsuit in which the plaintiff died during the trial court proceedings. If you're interested in understanding what happens to a personal injury claim after a person dies, or at least what the possibilities are, check this one out. Appellate folks may also enjoy the jurisdictional discussion at the end of the case.

...posted by ⊥ 5:59 AM ⊥ #

Wednesday, September 24, 2003

The Assisted Self-Murder Is Off. Or at least the show is. Owners of two Pinellas County venues -- the State Theater in St. Petersburg and Club Venom in Pinellas Park -- have apparently taken steps to prevent their stages from being the one the alternative rock band Hell on Earth uses to display a suicide. The AP reports here that the State Theater owner has cancelled the band's scheduled show there and that the Club Venom owner is refusing to allow the band to perform if the performance will involve a suicide. The band had been announcing for weeks that a terminally ill person would commit suicide during the St. Pete show.

This publicity stunt by the band raises not only substantial moral issues but criminal ones as well. Florida has long had a law against assisting suicide, or, as the law puts it, assisting self-murder. The offense is a second degree felony. You can read the law here.

...posted by ⊥ 2:55 PM ⊥ #

Tuesday, September 23, 2003

Schiavo News. October 10. According to the AP, that's the date that Judge Lazzara is going to hold a hearing on Terri Schiavo's parents' efforts to stop Terri's feeding tube from being removed. As noted in this post below, Terri's parents are claiming that Terri's husband and Judge Greer (the state court judge) have conspired to deprive Terri of her constitutional rights. You can read the latest here.

...posted by ⊥ 9:16 PM ⊥ #

Judicial Disqualification: Judge Hoeveler. The blogosphere has been buzzing lately with talk of the propriety of Judge Pregerson's reported remarks about the now-vacated panel decision postponing the California recall vote. Bloggers Bill Dyer, Eugene Volokh, and others expressed the popular view that the judge's public comments were improper.

Today, Florida has its own tale of judicial commentary. Many Floridians will recall that, several months ago, Judge Hoeveler of the Southern District of Florida made numerous comments about the Everglades restoration case that he has overseen since 1988. Those comments resulted in the Chief Judge of the district court issuing an order today disqualifying Judge Hoeveler from the case. U.S. Sugar filed the motion, and Judge Hoeveler quite appropriately referred it to the Chief Judge for a ruling.

You can view a copy of the decision from this page on the court's site. For those looking for the highlights, the Chief Judge relied on 28 U.S.C. § 455(a), which provides:

Any justice, judge, or magistrate judge of the United States shall disqualify himself in any proceeding in which his impartiality might reasonably be questioned.

Most notable about the order is the court's acceptance of the notions that interviews with reporters are presumptively two-way conversations and that reporters may be the sort of extrajudicial sources that can reasonably be seen to influence a judge's impartiality. So much for newspapers interviewing Florida's federal judges about their cases.

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How's My Driving? The Judge Wants To Know!!! That's the bumper sticker message that an Escambia County Judge is requiring convicted drunk drivers to display on their car bumpers, according to this story in today's Sun-Sentinel.

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Schiavo News. The latest update in this saga is that yesterday Terri Schiavo's parents filed an amended complaint in federal court. In the complaint, the parents allege a conspiracy between Terri Schiavo's husband and Judge Greer to deprive Terri of her constitutional rights. As you may recall, Judge Greer has currenty scheduled Terri's feeding tube to be removed on October 15. You can read about the latest developments in this story in today's Tampa Tribune.

...posted by ⊥ 6:54 AM ⊥ #

Toughman Suit. The St. Pete Times has this story today on how the family of a Bradenton woman killed last year in a Toughman fight is now suing everyone involved.

...posted by ⊥ 6:45 AM ⊥ #

Eleventh Circuit: Chudasama Redux. I'll go out on a limb here and say that corporate defense lawyers in particular will soon be keeping handy a copy of this decision released yesterday by the Eleventh Circuit. Without explanation, a district court had granted a plaintiff complete, unrestricted access to Ford's customer communications databases, despite the fact the plaintiff's suit involved only one alleged defect and despite the auto manufacturer's arguments that it had disclosed all relevant, nonprivileged items from its databases. The appellate court granted a writ of mandamus and vacated the discovery order, using some significant language about trial courts' obligations to make factual findings in the face of bona fide discovery objections. The court relied on its well-known prior opinion in Chudasama v. Mazda Motor Corp.

...posted by ⊥ 6:35 AM ⊥ #

Eleventh Circuit: Antitrust. So when is entry of summary judgment favored? In a price-fixing case, of course, where the conduct challenged may well be the very conduct the antitrust laws were designed to protect. You can read an extensive discussion regarding the summary judgment standard in such cases in this case decided yesterday by the Eleventh Circuit. The court affirmed a trial court's entry of summary judgment in favor of the tobacco manufacturers in a price-fixing class action. Also, the tail end of the court's opinion addressed the discretion trial courts possess with regard to the admissibility of expert opinions.

...posted by ⊥ 5:57 AM ⊥ #

Monday, September 22, 2003

Not-So-Abstract Brief. The silence at this corner of the blogosphere these last few days has been the result of an appellate brief that required this blogger's full attention. Fortunately, the brief is nearly on its way out the door. The world is now a better place, and blogging as usual should resume shortly.

...posted by ⊥ 5:07 PM ⊥ #

Friday, September 19, 2003

Eleventh Circuit: Roberto Duran Fans? You would think so from this decision decided today by that court. The case concerns boxer Roberto Duran's 4 world championship belts, which were stolen some years ago in Panama and subsequently recovered from a Miami businessman by the FBI. The FBI placed them in the hands of a federal district court, which held a trial to determine if the businessman or Duran was the belts' owner. A jury ruled in Duran's favor and the businessman appealed.

A couple of things make this Judge Carnes decision interesting. First, the court writes and publishes an affirmance, and the only points discussed are the admission of a hearsay statement and an unsuccessful motion for sanctions -- rather mundane topics for a published opinion. Second, the court begins the opinion by reciting, with apparent enthusiasm, facts and stories about Duran's life as a fighter -- information that the court appears to concede was obtained from the Internet and news reports and not from the record.

...posted by ⊥ 4:46 PM ⊥ #

Imagine Another Plate… this one with John Lennon and the word "Imagine" on it. You can read about it here in today's Palm Beach Post.

...posted by ⊥ 6:33 AM ⊥ #

Abortion Amendment On The Road. A Florida House of Representatives committee yesterday held a public hearing at the University of South Florida to hear citizens' comments on a proposed state constitutional amendment that would require minors to notify their parents before obtaining an abortion. You can read about the comments raised at the public forum in this story in today's Tampa Tribune. You can also look here to read the Supreme Court of Florida's decision from earlier this year ruling that a statute requiring parental notification violated pregnant minors' state constitutional right to privacy..

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Confederate Flag Plate. The folks behind the proposed new Florida license plate honoring Florida's role in the Confederacy are serious, and now Governor Bush is not saying whether he would sign or veto a bill authorizing the plate, according to this story from today's Tallahasee Democrat. (Remember how things sounded earlier this week? See this post.)

...posted by ⊥ 5:23 AM ⊥ #

Keeping the FCAT Under Wraps. The AP has this report on yesterday's oral argument at the First District regarding whether parents have a right under Florida law to obtain copies of the FCAT exams taken by their children.

...posted by ⊥ 5:12 AM ⊥ #

Florida Supreme Court: Right to Privacy. In this decision from yesterday, the Florida Supreme Court held that a cause of action for Florida's common law tort "invasion of privacy" (which should not be confused with Florida's constitutional right to privacy, a right vis-a-vis the State) is not stated by allegations of sexually offensive remarks and unwanted physical touching.

Those not too familiar with reading case law might be interested to note how a "majority" was formed in this case. Three justices agreed to the opinion that appears first in the decision and which reached the conclusion noted above. Three justices agreed to the opinion that appears second in the decision and which concluded that unwanted physical touching should be actionable as an invasion of privacy. Finally, in the third opinion in the case, one justice agreed with the first trio on the issue of whether an invasion of privacy claim was stated (and thus we have a 4 out of 7 majority on that issue), though he disagreed with the first trio on whether the court needed to resolve additional legal questions in the case.

...posted by ⊥ 4:56 AM ⊥ #

First District: Arbitration Unconscionable? In this case, the First District reversed a trial court's determination that an arbitration agreement was unconscionable and thus unenforceable. Written by Judge Webster, the decision is an excellent read for anyone interested in arbitration agreements or what makes (and doesn't make) a contract unconscionable.

...posted by ⊥ 4:30 AM ⊥ #

Thursday, September 18, 2003

Public Access to FCAT Exams? Today, the First District will hear oral arguments in an appeal from a trial court's decision that the State of Florida must release its FCAT exams and answers for parental inspection. You can read about the case in this story in today's Orlando Sentinel.

The case is second on the court's 2 p.m. docket. You can watch the court's afternoon session live on the Internet by going here at 2 p.m. and clicking on the "Live Oral Argument" link.

...posted by ⊥ 8:20 AM ⊥ #

Schiavo News. The trial court in the Terri Schiavo case has now set a new date to remove Terri's feeding tube: October 15. You can read about that decision, and Terri's parents' resolve to keep trying to keep her alive, in the St. Pete Times, the Orlando Sentinel, and the Tampa Tribune.

...posted by ⊥ 8:08 AM ⊥ #

Fourth District: Counsel Drafting Orders. The Fourth District yesterday had a good deal to say in this case about the circumstances under which courts should not be rubber-stamping orders drafted by counsel. The court's discussion on the subject is worth reading, especially for those involved in family law cases.

...posted by ⊥ 7:58 AM ⊥ #

Fourth District: Unpled Claims. It's well understood that a judgment should not be entered based on a claim that was neither pled nor tried by implied consent. This decision released yesterday by the Fourth District held that an unpled claim tried over objection cannot be the basis for a judgment, even if the opposing party can show no prejudice from being forced to defend the claim.

...posted by ⊥ 7:51 AM ⊥ #

Second District: Raising Constitutional Challenges on Appeal. This decision yesterday from the Second District reminds appellate attorneys that the constitutionality of a law on its face may be raised for the first time on appeal, but an as-applied challenge may not.

...posted by ⊥ 7:23 AM ⊥ #

Second District: Juveniles Are No Different. In this decision yesterday, the Second District declared § 985.215(6) unconstitutional in certain cases. The statute requires parents to pay $20 per day toward the care of an accused child placed in detention. Because adults who are not convicted are not charged for their care, the court found the statute unconstitutional on equal protection grounds to the extent it imposes charges where children are acquitted or not prosecuted. The court also held the statute unconstitutional on due process grounds where parents themselves provide for a child's care.

...posted by ⊥ 7:18 AM ⊥ #

Questions, questions. The Fourth District has now joined the Second District in certifying the following to the Supreme Court of Florida as a question of great public importance concerning Florida's Jimmy Ryce Act, which governs the civil commitment of sexual predators:

MAY AN INDIVIDUAL BE COMMITTED UNDER THE JIMMY RYCE ACT IN THE ABSENCE OF A JURY INSTRUCTION THAT THE STATE MUST PROVE THAT THE INDIVIDUAL HAS SERIOUS DIFFICULTY IN CONTROLLING HIS OR HER DANGEROUS BEHAVIOR?

Look here to read the Second District's decision certifying the same question.

...posted by ⊥ 6:48 AM ⊥ #

Eleventh Circuit. Right now -- well, maybe later today -- municipal officials from at least three states who deal with evictions should be reading the 50-page, 20-footnote majority opinion in this decision released yesterday by the Eleventh Circuit. The case concerned a decision by the City of Orlando's code enforcement officer to condemn an apartment complex and evict its tenants without providing them contemporaneous notice of their right to challenge the condemnation. The majority held that the tenants had a due process right to notice of their right to appeal the condemnation decision and that under the circumstances of the 36-hour eviction the city's code did not satisfy the notice requirement, but the court also held that the city's code enforcement officer was entitled to qualified immunity in a 42 U.S.C. § 1983 action because a reasonable code enforcement officer would not, at the time, have known the city's code did not provide adequate notice. Judge Birch dissented in part and would not have found the officer entitled to qualified immunity.

...posted by ⊥ 6:38 AM ⊥ #

Eleventh Circuit. The Eleventh Circuit has certified a question to the Supreme Court of Georgia regarding a City of Macon ordinance that prescribes that a $4.50 fee be charged to telecommunications providers for each foot of fiber optic cable they have installed in the city's public rights-of-way. Whether the ordinance is preempted under Georgia law is at issue, and the certified question is the following:

WHETHER SECTION 18-153 OF ARTICLE VII OF CHAPTER 18 OF THE CODE OF ORDINANCES OF THE CITY OF MACON, GEORGIA, AS AMENDED IN JULY 1999, IS PREEMPTED BY STATE LAW OR OTHERWISE INVALID SO AS TO PRECLUDE THE CHARGE OF THE SUBJECT FEES IN EXCESS OF THOSE PROVIDED FOR UNDER GEORGIA DEPARTMENT OF TRANSPORTATION RULE 672-11-03.

You can read the appellate court's decision here.

...posted by ⊥ 6:23 AM ⊥ #

Wednesday, September 17, 2003

Unsanctionable. Recently, Ernie the Attorney had a very good legal writing tip about using the word "significant" instead of more quantitative terms like "most." Another useful legal writing lesson can be learned from this week's online poll offered by the Bradenton Herald, which asks readers this question: "Should the State of Florida sanction a new Confederate Flag license plate?"

The problem with the question is its use of the word "sanction," which is among the more peculiar words in the English language because it can have nearly opposite meanings. As a verb, sanction generally means to approve or encourage (as it's used in the online poll), but the word is also used (improperly, some would say) as a verb meaning to punish or penalize, and sanction as a noun (quite properly) means both approval for an action and a penalty for disobeying a law or rule. So, if you sanction something, or if you receive a sanction, what exactly are you doing or receiving? If you must use the term, hopefully context will aid the reader in understanding your meaning, but it's generally a good idea to avoid the word "sanction" when possible.

...posted by ⊥ 7:02 AM ⊥ #

Any Way You Put It: We Stink. The Manhattan Institute for Policy Research has just released this study on national high school graduation rates, and according to this chart, Florida comes in dead last -- #51 of 50 states and the District of Columbia. Governor Bush's office disagrees with how the study calculated Florida's rates, according to this story in today's Tallahassee Democrat.

You might wonder what this post has to do with Florida law. Well, to oversimplify things, an uneducated citizenry is unlikely to understand the law -- and especially unlikely to understand the difference between the limits of existing law and what may be seen as the proper result in a given situation. Heck, educated persons often have a difficult time with this distinction, and when citizens do not understand the legal system that governs their lives, dissatisfaction or worse is imminent. To function properly, with the faith and trust of those it governs, Florida law needs educated Florida citizens.

...posted by ⊥ 6:49 AM ⊥ #

High-Speed Rail, Or Not. In 2000, Florida voters approved an amendment to the state constitution that requires the construction of a high-speed rail system that connects Florida's top metro areas. (You can read the provision here.) According to this story from today's Tampa Tribune, a state legislator has proposed a bill to ask voters to reconsider that amendment, in light of the costs of building the high-speed rail system.

...posted by ⊥ 6:44 AM ⊥ #

Class Action Certified Against Florida. Today's Tallahassee Democrat has this story on how a federal district court judge in Tallahassee yesterday certified as a class action a racial discrimination case against the State of Florida. The case is about pension benefits for workers at state mental health institutions. According to the story, some "front-line workers" at those institutions claim they are being unlawfully denied the special risk retirement benefits the State gives to police, firefighters, and correctional officers.

...posted by ⊥ 6:30 AM ⊥ #

Tuesday, September 16, 2003

Small Business Claim. The AP is reporting on a Vero Beach businessman who has filed suit against Wal-Mart for $1 billion in damages. From the story, it appears the suit may be for unfair business practices based on a former employee's successful efforts to redirect Wal-Mart to a new candle supplier. Interestingly, the businessman is quoted as saying "I'm all about the small guy, and I'm about to take on this giant." Now, Wal-Mart is a giant by any definition, but the claim is for $1 billion…

...posted by ⊥ 6:31 PM ⊥ #

Schiavo News. No substantive changes in the Terri Schiavo saga, but this story from today's St. Pete Times provides an update on the situation and some indications on when various rulings may be made.

...posted by ⊥ 7:26 AM ⊥ #

No Confederate Flags Here, Either. Two students at Naples High School were sent home yesterday when each refused to remove or conceal the confederate flag he wore on his shirt, according to this story in today's Naples Daily News. Displaying the flag is apparently banned by the school's written student code of conduct. In the story, school officials refer to this decision by the Eleventh Circuit in which the court earlier this year held that public school officials do not violate the First Amendment by banning displays of the confederate flag at school.

...posted by ⊥ 7:19 AM ⊥ #

Puff Daddy for Sure. A Miami cigar maker is suing P. Diddy and his label for surreptitiously filming the cigar maker's secret rolling process and publishing the footage in a music video, according to this story from today's Miami Herald.

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The Judge Isn't Happy… in the case of the severely retarded woman who was raped while in a state-licensed group home and has now given birth. At least, that would appear to be the situation as described in this story in today's Orlando Sentinel. The judge has criticized the Department of Children and Families and, less directly, Governor Bush for how they've handled the case and its publicity.

...posted by ⊥ 6:47 AM ⊥ #

Monday, September 15, 2003

Eleventh Circuit: Competency to Stand Trial. Did you know that if you are incompetent you can waive your right not to be tried for a crime? You can if you induced your own incompetency, or at least this is a reasonable view of the applicable law, according to this decision today from the Eleventh Circuit.

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Eleventh Circuit: Medicaid. Maybe what was originally a $4.2 billion settlement deserves an 84-page, 34-footnote decision on appeal. But then this was an appeal from an order dismissing an intervenor's claims -- specifically, the United States's claims -- in the silicone breast implant settlement out of the Northern District of Alabama. The Eleventh Circuit reversed the dismissal, allowing the government's Medicaid reimbursement claims to go forward.

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Eleventh Circuit: Qualified Immunity. Continuing its tradition of giving state actors the benefit of the doubt about whether the unconstitutional nature of certain conduct was clearly established, the Eleventh Circuit today in this case affirmed a trial court's decision that qualified immunity protected two Alabama community college officials from claims under 42 U.S.C. § 1983. The claims were based on the plaintiffs' Fourteenth Amendment right to equal protection and the defendants' alleged conduct permitting the plaintiffs to be victims of same-sex sexual harassment. The appellate court held that, between 1983 and 1988, same-sex sexual harassment was not clearly unconstitutional under the Equal Protection Clause.

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Eleventh Circuit: Antitrust/Patent Law. It's a great day when patent law and antitrust law intersect as they did today in this case. The Eleven