Abstract Appeal -- by Matt Conigliaro

Friday, November 28, 2003

Post-Free Day. Posting just isn't in the cards for me today. I'm going to take the full day off from here. Be back tomorrow. I hope everyone enjoyed the holiday yesterday.

...posted by ⊥ 7:59 PM ⊥ #

Thursday, November 27, 2003

Happy Day. Happy Thanksgiving to everyone. I have several items to post, but they're going to wait until the turkey is gobbled and the family's enjoyed my Mom's great holiday feast. Enjoy your day, and be thankful!

...posted by ⊥ 10:42 AM ⊥ #

Wednesday, November 26, 2003

Schiavo News. The AP has the latest information on the Schiavo saga in this story, which explains that, yesterday, Governor Bush "appealed" Judge Baird's decision not to recuse himself from the case, and Michael Schiavo's attorneys have announced they will move for summary judgment on Michael's constitutional challenge to the law that allowed the Governor to order Terri's feeding tube reinserted.

I have two comments on these updates.

First, prior reports that the Governor filed his "appeal" this past Friday appear to have been incorrect. Nonetheless, the comments I made about that "appeal" -- including why it is not really an appeal, thus I keep putting the word in quotation marks -- apply now. See my prior posts here and here.

Second, the AP story (like the many Florida newspaper stories that borrowed from it) is a bit unclear about what Michael Schiavo is asking the court to do. The AP states Michael is asking the judge "to rule on [the] lawsuit against Bush without waiting for the case to go through the normal, lengthy judicial process." That deserves some explanation. Michael is going to move for a summary judgment. As any lawyer will tell you, summary judgment motions are a normal, common part of trial court practice. They tell the court (though the court can disagree) that the case has no factual issues that require a trial and that a decision can be made on the merits of the case based solely on the law. That, it seems, will be Michael's argument here: there are no factual issues that require a trial in order to determine whether the new law is constitutional. We know from the Governor's prior filings that he disagrees -- he wants a trial on the issues that were previously tried before Judge Greer, namely what Terri's wishes would be in this situation. So we know the Governor will oppose the summary judgment motion on the ground a trial is necessary and on the ground that Michael is incorrect in his arguments about the law's constitutionality.

The difference between the typical case and the situation here, however, is that summary judgment motions are normally heard after all of the fact development in a case has occurred. Michael is taking the position that no fact development is necessary and therefore it should not be done here. Presumably, it would take a great deal of time, not to mention money and patience, for the parties to conduct the factual investigations necessary to permit them to hold another trial on Terri's wishes (or on other issues).

Whether Judge Baird decides to rule on the legal issues immediately or allow the parties time to develop a factual record for a new trial will probably turn on whether the court agrees with the Governor's position that he is not bound by the findings in the prior trials. For now, we can just wait and see which way the judge rules on that question.

...posted by ⊥ 8:20 AM ⊥ #

Supreme Court: Temporary Halt On Distributing Electronic Court Records. The Supreme Court of Florida is concerned about the growing availability of electronic court records, and yesterday Chief Justice Anstead ordered the state's clerks of court to stop the electronic distribution of many court records while a committee studies the issue. Exceptions include appellate briefs and opinions, among other things. You can read the court's order here and a press release summarizing the court's concerns here.

For those not very familiar with this issue, Florida's courts -- like many courts nationwide -- are concerned that private information contained in court files is becoming too accessible to the public. While most court documents have long been public records, available to anyone willing to visit the courthouse and request to view them or pay for a copy, pragmatic issues (namely, the trouble of doing all that) usually resulted in few records being widely disseminated. With the proliferation of the Internet and low-cost means to transmit voluminous documents electronically, that situation is changing fast, and there are concerns that private information is too easily accessible by those who would misuse it and that some information just should not be so widely available. So, while the matter is studied further, the electronic flow of information out of Florida's courts is being largely halted.

...posted by ⊥ 7:40 AM ⊥ #

Huh? The oddness surrounding this story from today's Palm Beach Post can be seen in the opening line: "The case of a Jensen Beach woman accused of trying to kill her husband with perfume and household cleaners was reduced to a misdemeanor battery charge because none of the spray actually touched the husband, a prosecutor said Tuesday."

...posted by ⊥ 7:21 AM ⊥ #

Imagine This Plate. There's talk in Tallahassee again about legislation to approve a John Lennon license plate, to benefit the Florida Association of Food Banks. Read about it here in today's Sun-Sentinel.

...posted by ⊥ 7:09 AM ⊥ #

Questions, questions. Florida's Sexual Predator Act does not violate the procedural due process rights of those the act deems to be sexual predators, according to this decision yesterday from the First District. Judge Benton dissented, and the court certified the following to the Supreme Court of Florida as a question of great public importance:

WHETHER THE RETROACTIVE APPLICATION OF THE PERMANENT EMPLOYMENT RESTRICTIONS OF SECTION 775.21(10)(b), FLORIDA STATUTES (2000), TO A DEFENDANT CONVICTED AND QUALIFIED AS A SEXUAL PREDATOR, WITHOUT A SEPARATE HEARING ON WHETHER SUCH DEFENDANT CONSTITUTES A DANGER OR THREAT TO PUBLIC SAFETY, VIOLATES PROCEDURAL DUE PROCESS.

...posted by ⊥ 6:57 AM ⊥ #

First District: Securities Regulation. This decision released yesterday by the First District shows that state securities regulation can be more stringent than similar federal legislation. The court decided that the Florida Securities and Investor Protection Act covers the sort of investment contract at issue in this case, even though a prior decision of the Eleventh Circuit (now being reviewed by the U.S. Supreme Court in this case) held that an equivalent contract was not of the sort regulated by the federal Securities and Exchange Commission.

...posted by ⊥ 6:35 AM ⊥ #

First District: Class Actions. Yesterday, the First District released this decision affirming the denial of a motion to certify a class. The plaintiff's claims in the case concern alleged antitrust violations and unfair trade practices, and the district court explained that common questions do not predominate unless the plaintiff shows a methodology will reveal a class-wide impact from the alleged conduct. The plaintiff attempted to use a statistical analysis to make this showing, but the court found the effort to be speculative.

...posted by ⊥ 6:23 AM ⊥ #

Tuesday, November 25, 2003

Schiavo News. The editorial board at the Palm Beach Post has these thoughts on Governor Bush's timing in the Schiavo saga.

...posted by ⊥ 7:04 AM ⊥ #

"Mark" The Evidence Doesn't Mean "Mark" The Evidence. Or so some in the Broward County Clerk of Courts office have learned. Today's Miami Herald has the short story here.

...posted by ⊥ 7:03 AM ⊥ #

Courthouse Honor. It looks like the new federal courthouse being built in Miami will be named, most appropriately, for the late Wilkie Ferguson, Jr. Judge Ferguson passed away this summer. Read about him and the new courthouse here in today's Miami Herald.

...posted by ⊥ 6:59 AM ⊥ #

Pole Watching. After lawsuits and the modern equivalent of a peaceful civil uprising by residents, the good energy folks at TECO have decided to bring down the row of 125'-tall, 32"-wide energy poles they erected without warning in the front yards of a Tampa neighborhood, replacing the behemoths with smaller poles. Read about it here in today's Tampa Tribune.

...posted by ⊥ 6:45 AM ⊥ #

Smoking Ban. Today's Boca Raton News has this story on how some Boca-area restaurants are doing their best to live with Florida's new workplace smoking ban.

...posted by ⊥ 6:25 AM ⊥ #

A Man To Remember: Judge Nimmons. U.S. District Judge Ralph Wilson Nimmons, Jr., passed away Monday at age 65, according to this story in today's Times-Union. Judge Nimmons devoted much of his life to judicial service, having served on both Florida's First District Court of Appeal and the state trial bench before becoming a federal trial judge. The Times-Union story is a nice piece. Judge Nimmons will surely be missed.

...posted by ⊥ 6:24 AM ⊥ #

Sunday, November 23, 2003

Schiavo News. William Levesque, a reporter for the St. Pete Times, has this story on how money is perhaps at the root of the Terri Schiavo case. The sworn testimony recited in the article may come as a surprise, or even a disappointment, to some who have chosen to believe one side over the other in this case. I see it all as further proof that no one should try to use tidbits of information to determine where the truth lies in a case like this one. I believe from experience that you cannot know what really happened in the lives of other people unless you were there or, perhaps, you participate in a full trial over the matter. I cannot make either claim, and that is why I do not contend that I know the truth about who said what or did what in the Schiavo case, or why anyone did any thing.

What I know is that we have a legal system to sort out cases like Terri's. It is a system that we should respect -- it is the product of many great persons' efforts to address the competing moral, practical, and legal interests involved. It is surely not a system beyond improvement, but we can only improve what we understand, and part of my goal in maintaining the Abstract Appeal web log is to inform people about Florida law, including how it handles cases like Terri's.

To that end, I received a question this past week that I wish to answer publicly, since I think the answer may be helpful to many readers. The question is whether it matters, legally, that the definition of "life-prolonging procedures" found in Chapter 765 "was not on the books in its present form when Terri Schiavo expressed her wishes not to be kept alive by artificial means." The simple answer is no, but even people who are paying attention to the law here may not appreciate the main reason why.

Chapter 765, entitled, "Right To Decline Life-Prolonging Procedures," provides Florida's citizens with a right to decline what section 765.101(10) defines as "life-prolonging procedures." As the astute inquirer no doubt appreciates, at the time of Terri's heart failure, that definition specifically excluded "the provision of sustenance" (which would include a feeding tube) as the sort of procedure that could be refused. Only later was that definition changed to include the provision of sustenance as a life-prolonging procedure that can be refused.

The right provided by chapter 765 is a statutory right, but statutes are not the only source of Florida citizens' rights. Another, in some ways more important, source of rights is the Florida Constitution, and Article I, section 23, of that document provides what is commonly known as Florida's "right of privacy":

Every natural person has the right to be let alone and free from governmental intrusion into the person's private life except as otherwise provided herein.

In the 1990 case In re Guardianship of Browning, the Florida Supreme Court made some very significant decisions about the scope of this privacy right.

First, the court ruled that "[a]n integral component of self-determination is the right to make choices pertaining to one's health, including the right to refuse unwanted medical treatment."

Second, the court ruled that a person's privacy-based right to refuse medical treatment encompasses "all medical choices" by that person.

Third, the court decided that there is no constitutionally significant distinction between supplying someone with oxygen by a mechanical respirator and supplying food and water through a feeding tube -- both constitute treatment that may be declined.

Fourth, the court ruled that a person does not lose the right to refuse medical treatment when he or she becomes incompetent.

Fifth, the court decided that a surrogate may make the choice for a person unable to exercise his or her privacy right, in the sense that the surrogate may determine what choice the person would make, not what decision the surrogate or anyone else would make or the decision that appears to be in the person's "best interests."

Sixth, the surrogate decisionmaker may be the person's legal guardian or a close family member or friend.

It is also significant that the when the Supreme Court decided Browning, the court was reviewing a decision by the Second District that held the court system is open to resolve the dispute if "doubt exists or there is a lack of concurrence among the family, physicians, and the hospital, or if an affected party simply desires a judicial order . . . ." In other words, when disagreement exists, Florida's courts can determine what decision the person would make. Though the Supreme Court did not address this procedure in Browning, the court appeared implicitly to approve it. (This is the procedure that Michael Schiavo used in this case to allow Judge Greer to make the decision about what Terri would decide to do.)

Getting back to Chapter 765 and Terri's case, it is not important that the statutory right to decline life-prolonging procedures did not encompass the withdrawal of a feeding tube when Terri originally expressed her wishes, or even when her heart failed, because the right to refuse a feeding tube is a constitutional right that is effective regardless of whether it is or was codified in a statute. Of course, the statutory right is now better aligned with the constitutional one, and it may well be correct to say that the statute applies to Terri today without regard to the constitutional right, but given that the constitutional right is firmly present, it is enough simply to recognize its application to Terri's case.

I hope some find this discussion helpful.

...posted by ⊥ 4:23 PM ⊥ #

New Voting System. Wondering what's changed with Florida elections since the November 2000 mess? The Tallahassee Democrat has a very interesting article on the subject here and a summary of the legal changes here.

...posted by ⊥ 12:47 PM ⊥ #

Death Row Appeal. Today's Miami Herald also has this interesting story on Florida death row inmate Pablo Ibar and the international effort to reverse his sentence.

...posted by ⊥ 12:32 PM ⊥ #

Holy Last Email! Sometimes I hear a good idea and wish I had thought of it. Other times, I hear a good idea and I'm glad someone else is responsible. The Miami Herald has this story today about a company founded on an idea I put in the latter category: Mylastemail.com will store your "last" emails and send them after your death.

...posted by ⊥ 12:22 PM ⊥ #

An Observation on the Observers. The New York-based National Lawyers Guild brought in people to monitor police activity at the Free Trade Area of Americas meetings this past week in Miami. The group is claiming eight of its observers were arrested and four were beaten by police, according to this story in today's Times-Union. The story mentions that Guild observers wore neon green hats to distinguish themselves from protesters. I can think of several good reasons for them to wear something distinctive (publicity for the group, helping members find each other, etc.), but distinguishing themselves from protesters is not one of them. I wonder why they felt they needed to do that.

...posted by ⊥ 12:04 PM ⊥ #

Yup, A Billion. A 16-year-old on spring break in Daytona participated in a wet t-shirt contest that was filmed. Ultimately, her bare top made it onto a Playboy video, and the woman, who is now suing Playboy in federal court here in Florida, calculates her damages at $40 per video -- or about $1 billion. Read about it here in today's Daytona Beach News Journal.

...posted by ⊥ 11:40 AM ⊥ #

Gay Marriage In Florida. Daytona's News-Journal has this look at the issue.

...posted by ⊥ 11:29 AM ⊥ #

Awards, Awards. This week, Chief Justice Anstead announced the most recent slate of winners of the Chief Justice Awards. The awards are given for outstanding contributions to the judicial branch, and you can check out the whole list of this year's winners here. Congratulations to all of them.

...posted by ⊥ 9:10 AM ⊥ #

Changeable Minds. Today's recap of legal news and such begins with this story from the Tampa Tribune. It seems Hillsborough County officials are rethinking whether they want to keep the first call time for alcohol sales on Sunday at 11 a.m., after earlier bumping it back from 1 p.m. This all relates to an aspect of alcohol sales that many people might not appreciate -- they can be regulated at all levels of local government.

...posted by ⊥ 9:02 AM ⊥ #

Worth It! Yesterday was too nice of a day here in St. Pete. I worked for a while in the a.m. but then had to get outside. The wonderful Debbie and I also saw a play downtown, Eugene O'Neil's "A Moon for the Misbegotten," performed by the great folks at American Stage. If you haven't seen downtown St. Pete lately, you don't know what I mean when I say it's just a pleasure to walk those streets now. What a gorgeous downtown it's become (once again, I'm assured). Then, proving to me that all is right in the universe, I got to spend the evening watching my team back in action. And they are back. What a great day.

Noticeably absent from the preceding activity list is anything to do with blogging the latest legal events. Yup. I have a bit to catch up on -- some cases from this last week, some news, and a question an Abstract Appeal reader sent me last week that I am going to answer online here. Time to get to it. Thanks for stopping by.

(Note: Originally, I posted that I would answer two questions here, but I've decided to answer one of them just in private.)

...posted by ⊥ 8:49 AM ⊥ #

Friday, November 21, 2003

Friday Florida Trivia Answer. The not-so-famous but much visited cities are Bay Lake and Lake Buena Vista. According to the 2000 census, their populations were 23 and 16, respectively.

The significance of these two cities is difficult to overstate. Bay Lake covers approximately 13,500 acres and includes the core of the Walt Disney properties, such as the Magic Kingdom, EPCOT, MGM Studios, and Animal Kingdom theme parks. Lake Buena Vista (originally named Reedy Creek) consists of about 3,000 acres and primarily includes Downtown Disney and the surrounding office areas. Most people just call the whole place "Disney World."

And a world unto itself it is. The Florida Legislature created these cities in 1967 from territory located in what was once just considered Orange and Osceola Counties. I say "once" because the Legislature effectively plucked the territory from the county maps when it made the areas into the Reedy Creek Improvement District. The Legislature granted the District a near full array of governmental powers. Among many other things, it can construct, operate, and mantain public utilities (including nuclear power plants!), telephone and other communications systems, and airports. The area is also exempt from zoning and other regulations of Orange and Osceola Counties, making it, in essence, Florida's sixty-eighth county.

As you might guess, the good folks at Disney own all but a small portion of the land in the District, giving Disney control of the District and making the Mouse one uniquely powerful Florida resident.

This information has been taken from Kent Wetherell's article, published in the Florida Coastal Law Journal, entitled, "Florida Law Because of And According To Mickey: The 'Top 5' Florida Cases and Statutes Involving Walt Disney World." The article is excellent and is highly recommended for anyone interested in Disney, Florida, or Florida law. It covers the law that created what we know as Disney World as well as other significant impacts the Mouse has had on Florida law. Enjoy it!

...posted by ⊥ 4:48 PM ⊥ #

And Even More Schiavo News. The AP reports here that Governor Bush has petitioned the Second District to remove Judge Baird from the constitutional challenge case. As I mentioned previously (in this post), this is technically not an appeal of Judge Baird's denial of the Governor's motion for disqualification, so the automatic stay we saw with last week's appeal by the Governor will not be in play here. Practically speaking, though, this is in essence an appeal, so you will probably see it referred to as such by the media (and maybe even me, if I'm not careful).

The Second District has the ability to deny the petition without requiring a response from Michael Schiavo, or, of course, the court could order a response and then rule either way. I suspect we'll know more on that score either late today or early tomorrow.

...posted by ⊥ 2:57 PM ⊥ #

More Schiavo News. Governor Bush has posted here his brief defending the law that permitted him to order Terri Schiavo's feeding tube reinserted. I encourage those interested in this case to read it, and to read the briefs filed by Michael Schiavo, the Schindlers, and Florida's Speaker of the House. The last two are amicus curiae ("friend of the court") briefs filed by persons who are not parties to the lawsuit. Between all of the briefs, you will get a good sense of the legal battleground here.

You may also pick up on two significant, and related, differences in how the parties believe this case should go forward. Michael sees this case as a purely legal one about whether the Legislature had the constitutional authority to enact the new law that permitted the Governor's intervention. The Governor, on the other hand, contends that this case is about Terri's wishes. He asserts that Judge Greer's findings from the earlier trials regarding Terri's wishes should not simply be accepted here; instead, they should be relitigated. The Governor has even filed a separate motion to strike Michael's brief because it is filled with recitations based on findings from the prior proceedings.

How will this be resolved? And when? That's hard to say. One guess is that Michael will soon file an opposition to the Governor's motion to strike, after which Judge Baird will quickly hold a hearing on that motion. At the hearing, the judge will decide whether he thinks the issues are purely legal ones (Michael's position) or whether new fact-finding is required about Terri's wishes (the Governor's position). From there, depending on how the judge rules, we'll either have a hearing scheduled to argue all of the legal issues or we'll begin the involved fact-finding process we call discovery which will lead up to another trial. Just a guess.

...posted by ⊥ 2:24 PM ⊥ #

Friday Florida Trivia! What two neighboring cities in Florida are home to a combined total of about 40 residents?

Hint #1: You've probably been to (or at least through) both of them.
Hint #2: They have an incredible connection to Florida law, which is why they're the subject of this week's question…

I'll post the answer around 4:45 EST today.

...posted by ⊥ 8:00 AM ⊥ #

Schiavo News. Judge Baird yesterday denied Governor Bush's motion asking the judge to recuse himself, according to this story in today's St. Pete Times. The Governor had argued that the judge appeared biased.

Procedurally speaking, it is not clear what is going to happen next. Everyone knows that the case is about whether the new law we've been talking about is constitutional, but the two sides are taking very different positions regarding the procedural posture of the case. I'll discuss this further in a post later today.

...posted by ⊥ 7:42 AM ⊥ #

Thursday, November 20, 2003

Schiavo News. Governor Bush filed his response yesterday on the merits of Michael Schiavo's constitutional challenges to the new law that permitted the Governor to order Terri's feeding tube reinserted. I have not read the Governor's brief yet, but these articles in the St. Pete Times and the Tampa Tribune indicate that the Governor is doing a number of things. First, he is defending the law's constitutionality on the various grounds raised by Michael's challenges, such as separation of powers, equal protection, and Terri's right of privacy. Second, the Governor is asserting that he is not bound by the factual decisions made in the earlier trials regarding Terri's wishes and he is asking for a jury trial on those issues, at which they would be decided again. Third, the Governor has separately moved for Judge Baird to recuse himself, saying the comments the judge made last week about how the Governor's actions are affecting Terri's right of privacy show the judge is biased against the Governor.

Wow. That's a good deal to keep track of here. Florida law requires that Judge Baird rule on the recusal motion first. If the judge grants the motion, the case will be reassigned to another trial judge. If Judge Baird denies the motion, the Governor could "appeal" the decision, but I note that this "appeal" would not trigger the automatic stay mechanism that we saw last week when the Governor appealed the denial of his motion to dismiss. (That's because denial of a motion to recuse is immediately reviewed by initiating a whole new proceeding in the appellate court -- a petition for a writ of prohibition -- which, technically, is not an actual appeal of the trial judge's decision. The automatic stay comes into play only where a state official initiates an appeal as that term is technically used in Florida law.)

As for the jury trial request, that brings up a host of constitutional and other legal issues. I suppose the Governor is arguing that res judicata (the concept that a decision made in an earlier case remains binding on the parties) does not apply to him because he was not a party in the earlier trials between Michael and Terri's parents. So there is an issue about whether the Governor can relitigate those trials and the decisions made in them, and if it were to be determined that those issues could be relitigated here, then there would be an issue about whether the findings at trial are to be made by a judge or a jury.

Expect a very quick decision from Judge Baird on the recusal issue.

...posted by ⊥ 7:59 AM ⊥ #

Gay Marriage In Florida? The St. Pete Times has this story predicting that, like the snowbirds, this issue is on its way down to Florida.

...posted by ⊥ 7:28 AM ⊥ #

Parental Notification, Guns. Republican lawmakers are planning new measures for this next year to firm up support with the party's base, according to this story in today's Daytona Beach News-Journal. Among the items under consideration are a proposed constitutional amendment to permit parental notification before minors undergo abortions and a law that would effectively stop state agencies from compiling gun ownership databases.

The proposal regarding parental notification comes on the heels of this July decision by the Florida Supreme Court, in which the court ruled that the right to privacy provision of Florida's Constitution invalidated a parental notification law. A constitutional amendment permitting notification would supercede any contrary effect of the privacy right.

...posted by ⊥ 7:18 AM ⊥ #

"Jesus Is The Reason For The Season." Broward County officials prohibited a Ft. Lauderdale church for using these words on a display at the county's annual Festival of Lights celebration, but yesterday a federal judge ruled that the county's decision violated the church's First Amendment right to free speech. Judge Zloch ordered the message slightly modified, so it reads "Calvary Chapel Says Jesus Is The Reason For The Season." You can read the Sun-Sentinel's story on the ruling here.

...posted by ⊥ 6:59 AM ⊥ #

Constitutional Change. Leaders in Tallahassee are taking a hard look at alternatives to the process that permits citizens to place proposed constitutional changes on election ballots and amend that governing document by majority vote. Today's Tallahassee Democrat has the story here, and today's Tampa Tribune has its own story here.

...posted by ⊥ 6:44 AM ⊥ #

Florida On The 10 Commandments. Some Florida lawmakers are considering a measure that would urge Congress to advance an amendment to the U.S. Constitution that would permit government references to the 10 Commandments. Any such measure passed by Florida lawmakers would be purely symbolic. Read about it here in today's Bradenton Herald.

...posted by ⊥ 6:30 AM ⊥ #

Wednesday, November 19, 2003

Manatees Bumped… To next year, that is. The AP reports here that the Fish & Wildlife Conservation Commission has decided to postpone until next year any decision on whether to downlist manatees on the state endangerment lists. Good for the critters.

...posted by ⊥ 1:40 PM ⊥ #

Schiavo News. Yesterday, the Second District vacated the temporary stay it imposed Friday on the case before Judge Baird. Read about it here in today's St. Pete Times.

Shortly after the Second District ruled, Judge Baird gave Governor Bush until 5 p.m. today to submit his legal brief defending the new law that allowed the Governor to order Terri Schiavo's feeding tube reinserted. You can read about that order and the Governor's reaction in today's Sun-Sentinel and Tampa Tribune.

In resolving the stay issue, the Second District has decided to let the case proceed simultaneously in both the trial and appellate courts. Judge Baird will continue to hear Michael Schiavo's challenge that the new law is unconstitutional, and Governor Bush will now have to explain why he believes the law is constitutional. At the same time, the Second District will consider the Governor's appeal of Judge Baird's order denying the Governor's motion to dismiss. Recall that the Governor has asserted that the case before Judge Baird should be dismissed because, according to the Governor, Michael's attorneys did not properly serve the Governor with the lawsuit and the case should be heard in Leon County, not Pinellas County. Judge Baird rejected those arguments, and the Second District will now determine whether that decision was correct.

...posted by ⊥ 7:48 AM ⊥ #

Even More Manatee Talk. Florida's Fish & Wildlife Conservation Commission will meet today to discuss whether the manatee should be reclassified from an "endangered" species to a "threatened" species. Read about it in today's Daytona News-Journal and Key West Citizen.

...posted by ⊥ 7:22 AM ⊥ #

Fifth District: Spoliation. The Fifth District denied a certiorari petition in this case where a plaintiff was sanctioned for spoliation of evidence -- i.e., destroying or failing to preserve evidence. The majority opinion does not discuss the facts of the case because the decision to deny relief was based simply on the procedural notion that certiorari is not available and the plaintiff should seek relief by appealing at the end of the case. Judge Griffin, however, set forth the facts in a concurring opinion, and if you follow spoliation case law, you will be interested in this situation. Judge Griffin characterized it as "an interesting lurch in the law of spoliation that aficionados of that ever-expanding doctrine might like to be aware of."

In short, a plaintiff sued a contractor for an alleged construction defect involving a building's foundation. The plaintiff gave the contractor an inspection opportunity and, then, without notifying the contractor, the plaintiff had the defect repaired. The contractor argued that the plaintiff spoliated evidence by not allowing the contractor a chance to observe the repair work, since the work would expose the foundation and give observers a unique opportunity to determine the actual cause of the problem. The trial court agreed and sanctioned the plaintiff. Hmmm.

...posted by ⊥ 6:51 AM ⊥ #

Second District: Arbitration Agreements. If you are following the case law on when arbitration agreements are unenforceable because, for instance, they do not provide plaintiffs the same remedies available in court, you will want to check out this decision from the Second District.

...posted by ⊥ 6:35 AM ⊥ #

Second District: More Conflict. The Second District certified conflict in another case recently: this case presents the somewhat obtuse legal issue of whether PIP insurers can enter provider agreements with PPO networks and thereby pay lower reimbursement rates than is required by this statute. The court certified that its decision conflicted with a prior decision from the Fifth District.

...posted by ⊥ 6:17 AM ⊥ #

Second District: Citation Conflict. Florida has a law (this one) that prohibits traffic citations from being used as evidence in "any trial." But what if a person signs someone else's name to a citation and is later charged with forgery? In this case, the Second District held that the statute does not preclude admitting forged citations as evidence in a forgery trial. The court certified that its decision conflicted with an earlier decision from the First District, so it looks like the Florida Supreme Court will resolve the question.

...posted by ⊥ 5:58 AM ⊥ #

Tuesday, November 18, 2003

Second District: When Deceptive Bolstering's Not A Fraud. A plaintiff suing tobacco companies asked her doctor to change her medical records to indicate that smoking caused her cancer. St. Pete's own Judge Penick was not pleased -- he sanctioned the plaintiff by dismissing her suit, finding her request an effort to defraud the court. In this decision, the Second District found that the plaintiff was not attempting to defraud the court, and thus the punishment was too harsh.

I wonder what lesser sanction will be imposed on remand.

...posted by ⊥ 10:30 PM ⊥ #

Mo' On Manatees. These colorful thoughts on whether to downlist Florida's favorite creature to "threatened" status are from the informed perspective of Florida's own Carl Hiaasen. (Thanks to JHL for the link.)

...posted by ⊥ 10:13 PM ⊥ #

Manatee Status. The Palm Beach Post editorial staff has these views on whether Florida's Fish & Wildlife Conservation Commission should reclassify manatees as a threatened species, rather than an endangered species. The classification affects how heavily the state regulates manatee habitats. The FWCC is scheduled to vote on the reclassification issue tomorrow. You can read a full story on the subject here, in today's Tampa Tribune.

...posted by ⊥ 11:52 AM ⊥ #

The Court Reporter's Running Late… and now she's in jail on what looks like a contempt charge. Read about it in this story from today's Miami Herald.

...posted by ⊥ 11:36 AM ⊥ #

Ah! Practicing law is truly fun, even though it can sometimes consume you. That's how it has been the last day or two for me, and that's why I have not posted since the Schiavo update on Sunday. Fortunately, while I was supposed to attend an all-day hearing today to recover appellate attorney's fees for an appeal we won, the matter has come to an amicable resolution without the hearing, and I'll be able to spend today catching up on things, including Abstract Appeal. Be back soon.

...posted by ⊥ 7:58 AM ⊥ #

Sunday, November 16, 2003

Schiavo News. It turns out yesterday's "latest" was not the latest at all. The St. Pete Times reports here that, late Friday, the Second District issued an order "indefinitely" reinstating the stay of the case before Judge Baird.

So what just happened? Recall that Governor Bush moved to dismiss Michael's constitutional challenge to the new law based on two procedural arguments: that Michael's attorney did not deliver a copy of the lawsuit to the Governor in the right manner (the service of process issue), and that Michael should have filed the suit in Leon County, not Pinellas County (the venue issue). Judge Baird denied that motion, rejecting both grounds. Governor Bush then filed a notice that he intended to appeal that denial, and, under Florida's procedural rules, that notice triggered an automatic stay of the case until the appellate court resolves the service of process and venue issues.

Under the procedural rules, however, trial judges (like Judge Baird here) have discretion to vacate this sort of automatic stay, and the trial judge's ruling on whether to do so can be immediately reviewed by the appellate court. By all appearances, that is what is happening here. Michael moved in the trial court to vacate the automatic stay, Judge Baird granted that motion (which would allow Michael's constitutional challenge to go forward at the same time the Governor's appeal goes forward), and Governor Bush moved in the appellate court to have the stay reinstated. The Second District is now considering that motion, and, in the meantime, the court has issued a stay.

The Times's report that the stay is indefinite is probably inaccurate. The stay is likely a temporary one that will last only until the court rules on whether to reinstate the stay. I suspect this because the story indicates that Michael has until Tuesday to file a response with the Second District explaining why the trial court proceedings should be expedited. I take that to mean that the Second District has stayed the trial court proceedings temporarily to allow both sides to be heard on the issue of whether the trial court proceedings should be stayed during the appeal of the order denying the Governor's motion to dismiss.

So we have a stay while the appellate court decides whether to enter a stay. That may seem bizarre to some, but it is actually quite normal. Michael will file his response on the issue of the stay Tuesday. The court will then rule on that issue. If the court grants the Governor's motion, the case in front of Judge Baird will remain halted until the appellate court rules on the procedural issues raised in the Governor's motion to dismiss. If the court denies the Governor's motion, then the trial court and appellate court proceedings will both go forward at the same time.

...posted by ⊥ 1:16 PM ⊥ #

Saturday, November 15, 2003

Schiavo News. Today's St. Pete Times has the latest here. To sum it all up, yesterday Judge Baird vacated the stay put in place automatically when Governor Bush appealed the denial of his motion to dismiss the case. (For more on the stay and the motion to dismiss, see this post.) Vacating the stay allows the case to go forward before Judge Baird while the Second District considers the Governor's appeal.

At the hearing on whether to vacate the stay, Judge Baird apparently gave strong indications that he believes the new law is violating Terri's right to privacy -- meaning her right to determine whether she wishes to continue receiving life prolonging measures in this situation. Recall that previous trials and appeals determined, by clear and convincing evidence, that Terri would chose not to continue receiving her feeding tube under these circumstances.

Judge Baird has apparently ordered the Governor to file his brief on the merits of Michael's constitutional challenges by Monday. Given the judge's comments yesterday, it is probably a good bet that a hearing on the entire matter will shortly follow.

...posted by ⊥ 7:11 AM ⊥ #

Friday, November 14, 2003

Schiavo News. The Schindlers are scheduled to appear on Larry King Live tonight at 9 p.m. EST.

UPDATE: Scheduled or not, they were not on tonight's program. I'm no longer going to believe anyone who tells me (or any Terri Schiavo-affiliated site that says) the Schindlers are going to be on Larry King Live -- or at least I'm not going to post anything about any such scheduled appearance. The Schindlers were apparently on Oprah, today, though.

...posted by ⊥ 6:46 AM ⊥ #

Attention Attorneys: Court Deadlines/Operations Suspended. Yesterday, Chief Justice Harry Lee Anstead entered an order suspending numerous court-related deadlines and operations in Miami-Dade County because of anticipated problems with court access during next week's Free Trade Area of the Americas Summit. The FTAA Summit will be held in Miami during November 17 through 21, and thousands of protestors are expected to flood downtown Miami's streets. The Miami-Dade County suspensions include the following:

- appellate time limits
- operations in the Dade County Courthouse and the Lawson E. Thomas Center
- speedy trial time limits
- time limits for domestic violence injunctions under chapters 741 and 748
- Baker Act hearing time limits
- certain foreclosure sales

For more detailed information about the suspensions, you can read the Chief Justice's order here.

...posted by ⊥ 6:39 AM ⊥ #

Doctors v. Plaintiffs' Lawyers. Today's News-Journal has this interesting story on the next phase in the war between Florida's doctors and the plaintiffs' lawyers who sue them: dueling proposed constitutional amendments.

Frankly, this is amusing, but more so it is sad. The state constitution should not be a battleground for tit-for-tat political gamesmanship.

...posted by ⊥ 5:52 AM ⊥ #

Supreme Court: APA Standing. Yesterday, in this decision, the Florida Supreme Court held that the NAACP had standing to challenge adminstrative rules by which the Board of Regents first implemented Governor Bush's One Florida plan. At least, that will be the headline.

One Florida is controversial because it eliminated race as a factor in state college admissions, but yesterday's decision seems to have little, if anything, to do with One Florida. The NAACP's challenge was to a series of amendments that the Board of Regents made to Florida's administrative rules. The Board of Regents was a statutory creature, and so its rules were subject to challenge under the Administrative Procedure Act. In the 2002 election, however, the people of Florida adopted Article IX, section 7, of the Florida Constitution, which created the Board of Governors to oversee the state's university system, and that constitutionally-authorized board has now adopted the Board of Regents's rules that are challenged in this case. To make a long story short, there is a strong argument that the NAACP's adminstrative challenge is now moot on the ground that the rules of a constitutional agency are not subject to APA challenges.

Three justices dissented from yesterday's decision solely on the ground that the mootness issue loomed large enough that it should be addressed by the lower courts before the Supreme Court resolved the APA standing issue. In a footnote, the majority recognized the case's potential mootness but went ahead to decide the APA standing issue anyway. So, in the end, the court's decision appears to be one about how broad the standing doctrine is when applied to the APA -- something that may now be of no moment to the One Florida challenge.

...posted by ⊥ 5:17 AM ⊥ #

Third District: Crack On! You know what that term means, right? If not, Judge Gersten will tell you in this decision from the Third District.

...posted by ⊥ 4:37 AM ⊥ #

Third District: Creative Insurance Arguments. For those in doubt, here's a reminder that courts do not automatically stretch the terms of an insurance policy to find coverage wherever a sympathetic loss occurs. In this case, the Third District addressed a situation where a man set to undergo chemotherapy treatment decided to cryopreserve his sperm so that, even if the treatment made him sterile, he and his wife might still have an opportunity to have children. The treatment ultimately left him sterile, but the cryopreservation company inadvertently destroyed the frozen sperm. The couple then attempted to recover from the company's insurance policy, asserting that the destruction constituted "bodily injury" as covered by the policy. The appellate court affirmed a trial court's decision finding no coverage, because sperm outside the body was not a body part to which "bodily injury" could occur.

...posted by ⊥ 4:32 AM ⊥ #

Fourth District: Civil Procedure 101. This decision from the Fourth District reminds us that Rule 1.530 of the Rules of Civil Procedure permits a party to file a motion for new trial or a motion for rehearing, but the rule does not permit a motion for rehearing of a ruling on a motion for new trial.

...posted by ⊥ 4:08 AM ⊥ #

Third District: CI Conflict. In a criminal prosecution, can the state avoid disclosing the name of a confidential informant where the defendant claims the identity is relevant to a misidentification defense? In this case, the Third District held disclosure is not required. The court certified that its decision conflicts with a prior decision from the Second District, so perhaps the Florida Supreme Court will sort out which court is correct.

...posted by ⊥ 3:57 AM ⊥ #

Third District: Easy On The Perry Mason. In a criminal case, no matter how much one witness's story differs from the stories told by other witnesses, the prosecution is not permitted to ask a witness whether another witness, or all the other witnesses, lied. Read about the rule in this decision from the Third District.

...posted by ⊥ 3:50 AM ⊥ #

Back in Action. Happy Friday! Time for a series of posts on the noteworthy cases of the last two days.

...posted by