Abstract Appeal -- by Matt Conigliaro

Wednesday, December 31, 2003

Fourth District: Tobacco Class Action. Have you heard the fraud theory being asserted in various suits against the tobacco industry that, in short, alleges that the "light" cigarette concept is a sham? You can read about it in this New Year's Eve-newsworthy decision from the Fourth District. The decision perhaps renders the theory a little less attractive to the plaintiffs' bar: in a class action advancing this theory, the appellate court held that common issues will not predominate and thus the class must be decertified.

...posted by ⊥ 3:30 PM ⊥ #

Happy End, Happy Beginning. Light posting today, at most, depending on whether any terribly interesting cases are released. Since that's not likely, I'll take a moment now to wish everyone a great end to 2003 and a great start to 2004. And I thank everyone for stopping by this little corner of the Blogosphere.

...posted by ⊥ 9:38 AM ⊥ #

Tuesday, December 30, 2003

Safer Roads. What Florida driver has not experienced the frustration of watching -- or trying to avoid -- an elderly driver on Florida's roads who by all appearances cannot see a thing? Perhaps those frustrations will be a bit less frequent after January 1, when a new Florida law takes effect requiring drivers 80 years old or older to take a vision test each time they renew their drivers license (which could be as infrequent as every six years). Today's Sun-Sentinel has a story on the new law here. Among other interesting tidbits, the story states that there are more than a half million Floridians over 80 who have a drivers license. That explains a lot.

...posted by ⊥ 7:59 AM ⊥ #

Ewww. If the title "Cadaver Lawsuit Widens" captures your attention, then you will probably be fascinated by this story in today's Miami Herald about a series of lawsuits against Boca Raton's Lynn University and others. The suits complain about the alleged unauthorized use of recently deceased bodies in the school's now former mortuary program. The trial judge in one of the cases has just permitted the plaintiffs to seek punitive damages. Recall that, in Florida, a lawsuit cannot seek punitive damages until a judge rules that the plaintiff has at least some evidence to show that such damages are warranted.

...posted by ⊥ 7:44 AM ⊥ #

Tate Update. Speaking of the Lionel Tate case, the Miami Herald has this update on the likelihood -- nay, inevitability -- that he will take the pending plea offer from the state.

...posted by ⊥ 7:38 AM ⊥ #

Juvenile Justice. Some years ago, I read a fascinating article on how the last few centuries have produced a pattern of gambling regulation that consistently progresses between the extremes of prohibition and allowance. I would like to see a similar study that traces the nation's sentiments about treating juvenile criminals as adults. I suspect the results may look similar to the cyclical pattern seen with gambling. This all comes to mind because of this story in today's Tallahassee Democrat about a new legislative proposal, stemming from the Lionel Tate case, to keep minors out of Florida's adult prison system.

...posted by ⊥ 7:33 AM ⊥ #

This Is What They Don't Want You To See. That pretty much sums up this story in today's Bradenton Herald about the evidence that the defense wishes to exclude in a murder trial set to start Monday.

...posted by ⊥ 7:18 AM ⊥ #

Monday, December 29, 2003

Schiavo News. The AP has this year-end wrap up on how the Terri Schiavo case caught the nation's attention in 2003. The story is a nice summary, though it contains at least one tiny error: it indicates that courts have "repeatedly affirmed Michael Schiavo's right to remove the feeding tube" from Terri, but that is not what happened here. A court decided, after a full trial, that Terri would not wish to continue receiving the feeding tube under her current conditions, and courts have repeatedly affirmed that ruling. Michael did not make the decision. He just advocated for the decision he thought the court should reach.

A second possible inaccuracy lies in the statement, "Circuit Judge W. Douglas Baird has said in open court that he considers the law unconstitutional." Now, I have not been in court and cannot say affirmatively that I know Judge Baird did not make such a statement, but I assume that the story is referring to the same comments that were the subject of Governor Bush's unsuccessful effort in this case to have Judge Baird disqualified. The comments at issue there did not indicate that the judge considered the law unconstitutional -- they reflected the judge's belief that the law at issue infringed upon Terri's right to privacy.

Those of you who are not lawyers may think this is simply classic lawyer-like pickiness over words, but there is a substantial difference in the two statements. Just because a law infringes, or invades, or intrudes upon a particular constitutional right does not mean that the law is unconstitutional. The ultimate question is whether the law can do so in keeping with the constitutional scheme, and for each right, the case law has typically developed a test or series of tests to determine if the intrusion is constitutionally permissible. A simple example might be a law that requires any group of people to obtain a permit before they can protest in a public place -- there are many such laws, and all of them intrude on the right to free speech, but most if not all of them are entirely constitutional. They are permissible infringements because they do no more than provide reasonable regulations on the time, place, and manner of speech.

Back to Judge Baird, I do not believe the judge has stated whether he believes the law is constitutional. I believe that, thus far, he has only said that the law intrudes upon Terri's right to privacy, and with regard to that right, the issue will then be whether such an intrusion is permissible. The Governor has argued that it is; Michael Schiavo has argued that it is not. We will just have to wait and see who wins, both now and in the appellate proceedings that will follow.

...posted by ⊥ 12:49 PM ⊥ #

Lionel Tate News. The weekend began with news that Tate has again been offered the same three-year plea deal he turned down before his trial. Today, prosecutors will ask the Fourth District to reconsider its decision ordering a new trial for the youngster. The AP has this story on these events. You can also read the appellate court's decision in the case here.

...posted by ⊥ 6:52 AM ⊥ #

Indian Tribe Stops Traffic. Literally. The Miccosukee Indians have been setting up checkpoints along a county road that runs past a tribe reservation, and some locals who are getting stopped while traveling the road are a bit upset. Read about it in this story in today's Sun-Sentinel.

...posted by ⊥ 6:45 AM ⊥ #

Good Samaritan Twist. The University of Miami medical school, a private school, is looking to the Legislature for the same medical malpractice immunity given to Jackson Memorial Hospital, a Miami public hospital, when it comes to treating nonpaying and Medicaid patients. UM has 700 doctors who work at Jackson. Plaintiffs' lawyers say the request is discriminatory. Read about it all here in today's Miami Herald.

...posted by ⊥ 6:28 AM ⊥ #

No, Not That Light… The Palm Beach Post has this story on this year's turtle troubles in Palm Beach County. Development along the shoreline continues to disorient the little critters.

...posted by ⊥ 6:21 AM ⊥ #

Out of Sight, But Coming Back. Today's Tallahassee Democrat has this story about the medical malpractice debate and how it will be returning to the stage in 2004.

...posted by ⊥ 6:15 AM ⊥ #

Friday, December 26, 2003

Constitutional Amendment News. The AP has a series of stories this morning on proposed amendments to Florida's Constitution. Recall that, under Article XI of Florida's constitution, constitutional amendments may be proposed by citizens, by the Legislature, or by a constitututional revision commission, and proposed amendments become part of the state's foundational law if approved by more than 50 percent of voters in a statewide general election.

First up, we have this recap of proposed amendments since 1978 that made the ballot. The list is divided into proposals based on citizen initiatives and proposals authored by the Legislature.

Next, we have this list of initiatives that are "active" heading into the election of 2004. Some notables include "Yari-Professor Fun-Der-Full Lawrence's Legalization of Marijuana Committee," "Florida's Amendment Requiring Legislators to Teach in Their Florida School District Four Days a Year," and "Tax Foreclosure on Homesteads of Elderly Prohibited."

Finally, there is this story on how some lawmakers are working toward limiting citizens' ability to get proposed amendments on the ballot. Their argument is that the process does not favor populist efforts to right wrongs; rather, the process favors whatever special interest group can afford the costs of gathering signatures and mounting an effective public relations campaign. Hmmm. I wonder what these legislators could be thinking about. Maybe the pregnant pigs protection provision approved by voters in 2002? Or the commercial fishing net ban approved in 1994? Or the high speed rail provision approved in 2000? Or the school class size provision approved in 2002? …

...posted by ⊥ 5:20 AM ⊥ #

Baker Act. Today's Tampa Tribune has this story about legislators' interest in how Florida's Baker Act is being used to commit children.

...posted by ⊥ 4:58 AM ⊥ #

Surcharge Recharge? Today's Palm Beach Post has this interesting story about $10 million in refunds obtained in a class action suit against the city of Port St. Lucie for improper stormwater surcharges between 1993 and 1998. According to the story, typical residents who paid the surcharge all five years are receiving $244 and the class's lawyer is receiving $4.2 million. But that's not the interesting part. The interesting part is that the city is making plans to reinstate the stormwater charges retroactively.

...posted by ⊥ 3:57 AM ⊥ #

Wednesday, December 24, 2003

Merry Christmas! To those who celebrate the Christmas season, I wish you a very merry Christmas.

I also thank everyone for stopping by the Abstract Appeal web log, and I wish you all a joyous holiday season.

...posted by ⊥ 3:00 PM ⊥ #

Third District: Hospital Liability. In this case, the Third District joined two of its sister districts in holding that a hospital has an implied statutory duty to ensure that its physicians meet the minimum financial responsibility requirements imposed by Florida law. Judge Green dissented on grounds that the majority and the court's sister districts have created a supposedly statutory cause of action by judicial fiat, without the necessary showing of legislative intent.

...posted by ⊥ 2:50 PM ⊥ #

There Ought To Be A Law… That's all I can say when I read this case.

...posted by ⊥ 2:30 PM ⊥ #

First District: Homestead Law. Is a homestead located outside the state's municipalities limited to the residence of the owner or the owner's family? In this case, the First District today said no.

...posted by ⊥ 2:19 PM ⊥ #

Questions, questions. In this case, the First District today certified the following to the Supreme Court of Florida as a question of great public importance:

HAS SECTION ONE OF CHAPTER 2001-58, LAWS OF FLORIDA, LEGISLATIVELY OVERRULED DELGADO v. STATE, 776 So. 2d 233 (Fla. 2000), AS TO CASES NOT FINAL AT THE TIME OF SUCH DECISION IN WHICH THE OFFENSES WERE COMMITTED ON OR AFTER FEBRUARY 1, 2000, THEREBY PERMITTING A TRIAL COURT TO INSTRUCT A JURY THAT IT MAY FIND A DEFENDANT GUILTY OF BURGLARY, DESPITE EVIDENCE SHOWING A LEGAL ENTRY INTO THE PREMISES AND THAT AN OFFENSE WAS COMMITTED THEREIN WHILE THE DEFENDANT REMAINED WITHIN NON-SURREPTITIOUSLY?

In addition to being boggled over burglary, the First District also certified this question as one of great public importance:

IS THE FLORIDA STANDARD JURY INSTRUCTION ON "POSSESSION OF PROPERTY RECENTLY STOLEN" AN IMPERMISSIBLE COMMENT ON THE EVIDENCE?

The latter case is available here, and that is twice in the last week that the First District certified this particular issue. (For prior certifications of this question, see this earlier Abstract Appeal post.)

...posted by ⊥ 2:06 PM ⊥ #

Florida's First. First to have a faith-based prison, that is. Governor Bush today celebrated the facility's opening at Lawtey Correctional Institution. Read about it in this press release from the Governor.

...posted by ⊥ 1:51 PM ⊥ #

Abstract Welcome! I have my work cut out for me during the extended Christmas weekend. I need to update parts of this site to accomodate additional bloggers, such as the prior poster, Mr. Carroll. Hunter's a young lawyer in our firm's St. Pete office, and he's agreed to chime in on occasion. Should be fun for all.

...posted by ⊥ 12:28 PM ⊥ #

Guest Blogger. As a holiday present to Matt, I will from time to time assist him in posting. You may find me here. But no substantive post from me today. Happy Holidays to all.

...posted by ⊥ 9:47 AM ⊥ #

Schiavo News. Despite reports that Governor Bush filed another appeal Monday and triggered an automatic stay of the trial court proceedings, the hearing scheduled for yesterday before Judge Baird apparently went forward. Assuming the reports about a second appeal were correct, Judge Baird perhaps entered an order vacating the automatic stay and allowing the hearing to proceed. Perhaps. The news reports are not discussing this aspect of the story.

At any rate, we know that Judge Baird heard arguments from the Governor's and Michael Schiavo's attorneys yesterday, and at the conclusion of the hearing the judge announced that he is ready to rule but will wait for the Second District to resolve the Governor's pending appeals. You can read the detailed local coverage in today's St. Pete Times, Tampa Tribune, and Orlando Sentinel. The reports quote the Governor's attorney as expecting Judge Baird to rule in Michael Schiavo's favor and declare the law at issue unconstitutional. The Governor's attorney also indicated that the judge has effectively denied the Governor's request that another trial be held, this time with a jury, to determine what Terri's wishes would be.

I note that the Tribune story states, by way of background, that Terri Schiavo "has been in what most doctors term a persistent vegetative state since February 1990, when she suffered unexplained heart failure." In this post from yesterday, I commented on this subject and provided a link to this column, in which the attorney who represented Michael and Terri in their medical malpractice case explained what caused Terri's heart failure.

...posted by ⊥ 7:29 AM ⊥ #

Palm Beach Nativity News. If you are following this story, Palm Beach officials met yesterday and voted to allow a Nativity scene to be set up in a park corner, away from a more prominently displayed Christmas tree and lighted menorah. The residents requesting the Nativity scene declined the invitation because of the offered location. Read more about it here in today's Sun-Sentinel.

...posted by ⊥ 6:41 AM ⊥ #

May I Have A DNA Sample? Amazingly, that's the question Miami police officers have asked over 1000 men on the streets of Miami in hopes of finding a serial rapist whose DNA has been recovered from his victims. More amazingly, many of the requests are being obliged. The Miami Herald has the story here. Notably, all donated DNA winds up in a state law enforcement database, along with each person's identifying information. Wow.

...posted by ⊥ 6:31 AM ⊥ #

Rush News. A Palm Beach County circuit judge yesterday rejected Rush Limbaugh's efforts to invoke his privacy rights to keep his medical records out of the hands of local state prosecutors, according to this story in today's Palm Beach Post. The story details Rush's on-air comments yesterday that effectively called the investigation a politically motivated fishing expedition by the local state attorney, a Democrat.

Note that Rush also apparently commented that he will appeal, if necessary, to "a U.S. Circuit Court of Appeals." The current proceeding, however, is in state court, not federal court, and it is difficult to imagine a scenario that would land the merits of Rush's privacy challenge in a federal circuit court. On the other hand, as a political matter, Rush is probably getting his point across.

...posted by ⊥ 5:58 AM ⊥ #

Eleventh Circuit: Collateral Orders. Weighing in on the circuit-splitting question of whether a prisoner seeking relief under 28 U.S.C. § 2255 can immediately appeal an order denying bond, the Eleventh Circuit yesterday released this opinion answering the question in the affirmative. Appellate lawyers may wish to note that the court based its decision on the collateral order doctrine.

...posted by ⊥ 5:23 AM ⊥ #

Eleventh Circuit: Decertification. What's a holiday season without some new class action case law? Yesterday, the Eleventh Circuit released this decision on two procedural aspects of class decertification. First, the court held that class members must be given timely notification of any decertification and that the burden to do so is on the class representative and class counsel, not the trial judge. Second, the appellate court held that, under the circumstances of the case, which involved a class representative that declared bankruptcy and thus became an inadequate representative, the trial court erred in decertifying the class without first giving members an opportunity to intervene as the class representative.

...posted by ⊥ 5:13 AM ⊥ #

Tuesday, December 23, 2003

More from the Disenfranchisement Case… I wondered aloud yesterday about whether the Eleventh Circuit's decision in the felon disenfranchisement case could have any effect on the current litigation involving the Florida Constitution's "no-aid" provision. Here is a bit more detail about what comes to mind, beginning with some background on the recent federal decision.

The Eleventh Circuit case concerns Florida's felon disenfranchisement clause, which in essence blocks convicted felons from voting in Florida elections unless their civil rights are restored. That provision faces a challenge that it discriminates against blacks, but unlike the typical case alleging that a law discriminates on the basis of race, this case involves a constitutional provision, and one that was enacted numerous times. Florida's 1838 Constitution empowered the Legislature to disenfranchise those convicted of bribery, perjury, or other infamous crimes, and it arguably required the Legislature to deny the suffrage right to those convicted of bribery, perjury, forgery, or other high crimes or misdemeanors. The post-Civil War 1868 Constitution included a different version of the provision that expanded the denial concept to encompass all felonies. When the Constitution was rewritten in 1968, the 1868 version was carried over, albeit in a rewritten form.

The plaintiffs in the Eleventh Circuit case recognize that the 1838 provision cannot have been prompted by discriminatory intent -- at the time, black persons could not vote. The plaintiffs thus focus their arguments on the supposed discriminatory impetus behind the 1868 version; the state, meanwhile, focuses on the 1968 rewrite, arguing that whatever motivated the former provisions is irrelevant given the current provision's later adoption in a new foundational document.

After examining the law in this area, the Eleventh Circuit resolved how the burdens should be allocated among the parties. The court held that if an impermissible discriminatory intent is found to have been a motivating factor behind the 1868 version, and the state cannot prove that the provision would have been enacted anyway, absent that intent, then the state then has the burden of showing that the provision was knowingly and deliberately reenacted in 1968 for non-discriminatory reasons.

That's a significant set of potential burdens for the state to carry, and the decision is extremely newsworthy for the court's analysis in this regard, but what really interests me here is thinking about this burden-shifting process in the context of Florida's no-aid provision. That provision has its roots in an anti-Catholic bias that pervaded the nation's political leaders in the late nineteenth century. The no-aid provision states:

No revenue of the state or any political subdivision or agency thereof shall ever be taken from the public treasury directly or indirectly in aid of any church, sect, or religious denomination or in aid of any sectarian institution.

Last year, a circuit judge in Tallahassee relied on this language to declare unconstitutional Florida's Opportunity Scholarship Program, the voucher program for children in failing schools. The trial court determined that, to the extent the OSP permits parents to use vouchers to send their children to religious schools, the program violates the no-aid provision.

The state has appealed that decision to the First District Court of Appeal, which has heard oral arguments in the case but not yet issued an opinion. The state argues that the trial judge's interpretation of the no-aid provision requires Florida to discriminate against religious institutions with respect to what are otherwise religiously neutral programs. The state asserts that such discrimination could well violate the religious freedom and equal protection principles of the federal constitution and that, to avoid conflict with the federal constitution, the no-aid provision should be read the same as the First Amendment's Establishment Clause. That clause does not prevent a government program from including religious institutions so long as the program is not actually intended to promote religious beliefs and the program's primary effect is not the promotion of such beliefs. The plaintiffs in the case argue that the provision should be read to mean that no state monies should ever make their way to religious schools, as the trial judge held.

Now, that's the basic legal outline of the school voucher challenge. But there's more. Scattered throughout the briefing in the case are references to the no-aid provision's origin. To my knowledge, authorities on the subject all agree that Florida's no-aid provision was part of the late nineteenth century wave of so-called "Blaine amendments." James Blaine was a Speaker of the U.S. House of Representatives, and, to make a long story short, railing against the Catholic Church was a plank in his political platform -- he authored an unsuccessful proposed amendment to the federal constitution to prevent public funds from being used in Catholic schools, and his efforts promoted a successful tide of similar amendments to state constitutions across the country, including Florida's.

Unlike the felon disenfranchisement case, though, in the no-aid provision challenge, it is not the state that is disavowing the contentious provision's pedigree -- the plaintiffs are doing so. The plaintiffs are pointing to the 1968 Constitution, which carried over the no-aid provision with slight changes in language, as having cleansed whatever discriminatory taint accompanied the original enactment. Keep in mind, there is no equal protection or similar challenge at stake in this case -- it's a challenge to the OSP based on the no-aid provision -- but the state has raised the specter of such federal constitutional concerns with the hope that the court will consider them when attempting to decide how to interpret Florida's provision. In the end, I cannot help but wonder how the burdens discussed by the Eleventh Circuit in the felon disenfranchisement case would operate if the no-aid provision were to undergo a similar equal protection challenge, either informally in the current case or, if the trial court's interpretation of that provision were upheld, in a subsequent case. I will not speculate on the answers to such questions, but I will say that I find the whole situation very interesting.

By the way, I glossed over the notion that the Blaine amendments were born of anti-Catholic bigotry. Those interested in the subject -- which, from a legal or historical perspective, is purely fascinating -- might wish to check out the www.blaineamendments.org web site. It offers a discussion of Blaine and his legacy, including links to legal cases and academic works that discuss or interpret the Blaine amendments.

...posted by ⊥ 4:09 PM ⊥ #

Schiavo News. Much is going on, though there are not many details reported about it all. Today's Tampa Tribune offers some insights in this story. Apparently, Governor Bush has recently made a series of moves. He has sent letters to the Sixth Circuit's chief judge and to Jay Wolfson, the court-appointed guardian ad litem whose appointment expired last week, asking that Wolfson be reappointed in the case. The letters apparently raise questions that the Governor would like answered, including questions about whether some sort of physical abuse led to Terri Schiavo's current condition and whether Michael Schiavo acknowledges any conflict of interest in his serving as her guardian.

The tail end of the story also mentions that Governor Bush yesterday filed some sort of appeal in the case and that he is taking the position that this latest appeal stays the case before Judge Baird, preventing today's scheduled hearing on the constitutionality of the new law that permitted the Governor to order Terri's feeding tube reinserted. The story is unclear about what order the Governor has now appealed.

Interestingly, the story indicates that the Governor's letters discuss the possiblity that abuse led to Terri's current condition and that a medical malpractice settlement award may have created a conflict of interest for Michael Schiavo. There is no mention, though, of one of the ways in which these two subjects are linked -- something that for some reason seems not to have hit the radar of many who are discussing this case: a jury awarded Terri and Michael damages in the malpractice case after finding that Terri had bulimia, that her bulimia caused her heart failure and brain damage, and that her doctors were negligent in failing to diagnose Terri's bulimic condition. For more on this part of the Schiavo story, see this October 2003 column from the attorney who represented Terri and Michael Schiavo in the medical malpractice case.

...posted by ⊥ 8:28 AM ⊥ #

Rush News. Rush Limbaugh is attempting to block prosecutors from accessing his private medical records. The Palm Beach Post has the story here, including a discussion of how prosecutors are attempting to build a case that Limbaugh was "doctor-shopping," while Limbaugh's attorneys question how one can "doctor shop" among doctors who practice together.

...posted by ⊥ 7:54 AM ⊥ #

Nativity News. 'Tis the season. On Friday, the federal judge hearing the suit of a Palm Beach woman whose request to include a nativity scene in the town's holiday display went unanswered for three months ordered the town council to make a decision by noon on Christmas Eve. So the council meets today. Read about it all in this story in today's Palm Beach Post.

...posted by ⊥ 7:46 AM ⊥ #

Voodoo No Do So Well? Remember the Miami trial of J.C. Elso, at which powder used in a Santeria ritual appeared last week all over the courtroom? (If not, see this post.) Yesterday, Elso was convicted of money laundering and conspiracy charges. Read about it all (including other odd events in the case) in this story from today's Miami Herald.

...posted by ⊥ 7:38 AM ⊥ #

OSP News. The Sun-Sentinel has this story today on academic progress made by students using Opportunity Scholarship Program vouchers to attend private schools. The OSP provides vouchers to students in Florida's "failing" public schools and permits the students' parents to chose another local school at which to spend the scholarship money.

...posted by ⊥ 7:29 AM ⊥ #

More Mary. Today's Bradenton Herald has this updated story on how a Sarasota homeowner's association has ordered a resident to remove a 3-foot Virgin Mary statue from her front yard.

...posted by ⊥ 7:15 AM ⊥ #

Monday, December 22, 2003

Virgin Mary Statue. The homeowner's association for a Sarasota development has ordered a resident to remove a 3-foot Virgin Mary statue or face fines. Read about it in this story from the Sarasota Herald-Tribune.

...posted by ⊥ 2:44 PM ⊥ #

Overdose Suit. The AP has this story about a mother's lawsuit against numerous persons who allegedly caused her daughter's death. The daughter died of a fatal dose of Benadryl given her by a babysitter, allegedly to keep the infant quiet, and the babysitter has since been sentenced to serve eight years in prison for manslaughter. The mother is now suing not only the sitter but the drug's maker, the pharmacy that sold the medicine, the maker of a generic version of the drug, the state Department of Children and Families, and others.

...posted by ⊥ 8:06 AM ⊥ #

Voucher Thoughts. The St. Pete Times today released a lengthy editorial offering recommendations for adding accountability standards to the state's various school voucher programs. You can read it here.

...posted by ⊥ 7:59 AM ⊥ #

Pawn Shop Perks? Howard Troxler, columnist for the St. Pete Times, has this interesting piece about the steps one needs to take to recover stolen goods from a pawn shop. Mr. Troxler thinks the process is a bit impractical.

...posted by ⊥ 7:55 AM ⊥ #

Eleventh Circuit: Disenfranchisement of Felons. While the weekend may have been slow on the legal news front, this decision released Friday by the Eleventh Circuit received some well deserved attention. The court reversed a summary judgment entered against a group of plaintiffs on their claims that the felon disenfranchisement clause in Florida's Constitution violates the federal Equal Protection Clause and the federal Voting Rights Act because it was enacted to, and does, discriminate against blacks. The court remanded the case for further proceedings.

This is a truly fascinating case, and anyone deeply interested in Florida law and its historical roots is well advised to examine both the majority opinion and the dissent by Judge Kravitch. The different analyses employed by these two opinions deserve some extensive treatment -- something I will try to do tonight or tomorrow, notwithstanding the week's Christmas busyness. Also, and while I haven't been able to give it much thought yet, I'm particularly interested in whether the majority's analysis could have any effect on a challenge currently pending in Florida's state courts involving the "no aid" provision in Florida's Constitution -- the school voucher case. I'll mull that over today and offer some thoughts later.

...posted by ⊥ 7:47 AM ⊥ #

Merry Week! For everyone, I hope.

...posted by ⊥ 7:10 AM ⊥ #

Friday, December 19, 2003

Fifth District: Failure to Prosecute. If no record activity occurs for over one year in a case in which a motion to dismiss is pending but never set for a hearing, can the trial judge dismiss the case for lack of prosecution? A First District decision from last year said no, but today the Fifth District disagreed in this case. Conflict certified.

...posted by ⊥ 4:29 PM ⊥ #

Fifth District: Ouch! If I ever have to have an appeal dismissed for lack of jurisdiction, I could only dream of getting a concurring opinion that carried as much punch as Judge Pleus's concurring opinion does in this case. The Fifth District technically did no more than dismiss the appeal, but Judge Pleus went to bat for the appellant, calling the appellee's conduct "extortionate" throughout a 7-page concurring opinion and sending an awfully strong message to the appellee.

...posted by ⊥ 4:21 PM ⊥ #

Fifth District: Sovereign Immunity. This case can serve as a good reminder about a simple rule: the state is not liable when someone is injured on state property by an open and obvious condition. In this case, a girl on her way to school was walking along a street when she was struck by a vehicle. In her negligence suit, she claimed that the county should have installed sidewalks along the street. The Fifth District affirmed a summary judgment in the county's favor.

...posted by ⊥ 4:03 PM ⊥ #

Eleventh Circuit: Service of Process. In an excellent example of permitting the rule of law to prevail, the Eleventh Circuit yesterday released this decision affirming the dismissal of a class action antitrust suit against OPEC. The dismissal was based on the plaintiff's failure to serve OPEC in accordance with the Federal Rules of Civil Procedure. Why bring up the rule of law? Well, despite the plaintiff's commonsensical argument that a defendant should not be able to accept or ignore service at its whim, the court followed the service requirements to the letter, even though the validity of the plaintiff's service efforts came down to whether OPEC wanted to accept the papers it received as service. Not surprisingly, OPEC did not wish to be served in this particular lawsuit. Indeed, prior to the dismissal, the trial court had entered a default judgment against OPEC that included an injuction against price-fixing and a finding that OPEC's conduct resulted in an adverse impact on the U.S. economy to the tune of $80-100 million per day. The case is a good read for anyone interested in serving foreign persons.

...posted by ⊥ 3:05 PM ⊥ #

Trivia on Holiday. The weekly Friday Florida Law Trivia question is on a holiday of its own. It will resume after the holidays, perhaps with a guest blogger or two authoring some of the questions. Stay tuned.

...posted by ⊥ 8:07 AM ⊥ #

Supreme Court: New Duty For Utilities. The duty to maintain street lights is a duty held by many utilities. But is it a duty that protects the interests of those who might be injured by the darkness caused when street lights no longer function? Yesterday, in a case that may be analyzed nationally for its policy considerations and implications, the Supreme Court of Florida held that a utility that unreasonably fails to maintain a street light in working order has breached a duty the company owes to any person who is injured due to the resulting darkness. The decision, available here, involved a young man struck by a car in the darkness of an inoperative street light. The court recognized that it was departing from prior Florida law and the historic national view of the law in this area, but the court concluded that the modern understanding of the "undertaker's doctrine" -- the principle that one who undertakes to perform a service must do so carefully and not put others at risk for undue harm -- compelled the conclusion the court reached.

Justice Cantero authored a vigorous dissent that criticized the majority for expanding tort law as it applies to utilities farther than any other state has ever done and in a way that other states have consistently rejected. He disagreed with the majority's analysis as applied to utilities and cautioned that the majority's views could lead to far-reaching, unforeseen results in other areas. Justice Wells agreed.

This case is fascinating, and if I had more time this morning I'd love to muse about the philosophical questions it poses. Perhaps another day.

...posted by ⊥ 7:55 AM ⊥ #

Supreme Court: Judges Needed. Yesterday, the Supreme Court of Florida released its annual certification of need for additional judges. The short of it for the appellate courts is that the court requested two additional judges for the Second District and one additional judge each for the Fourth and Fifth Districts. The entire order, which could not be any more sincere about Florida's judicial needs or sympathetic to the Legislature's difficulties in apportioning funds, can be found here.

...posted by ⊥ 7:33 AM ⊥ #

Third District: 5 Minutes Not Enough. For the mathematically minded, this decision from the Third District might be reduced to a simple formula: two-day trial + closing argument limited to five minutes = reversible error.

...posted by ⊥ 7:24 AM ⊥ #

Third District: Rare Reversal. It's not every day that you see a bench trial decision reversed not for a new trial but for entry of judgment in the appellant's favor. But that's what happened in this case from the Third District. The defendant towing company had auctioned the plaintiff's $80,000+ Porsche for $1,300, and the plaintiff sued for conversion. The trial court held a bench trial and found in the defendant's favor. On appeal, the Third District held that a conversion clearly took place, and the court ordered that judgment be entered in the plaintiff's favor.

...posted by ⊥ 7:21 AM ⊥ #

Third District: Castle Doctrine. I found this new case interesting. A trial court ruled that a defendant in a murder trial could utilize the "castle doctrine" -- the common law rule holding that while a person ordinarily has a duty to retreat before using deadly force for protection, there is no duty to retreat from one's home (i.e., one's castle). In the case, a shooting took place not at the defendant's home but at the apartment of a woman with whom the defendant had just had relations, in the biblical sense. The trial court found the defendant entitled to use the castle doctrine as a defense: "I expect home to be where you hang your hat and in this case, as I understand it, the defendant was doing more than hanging his hat; he was hanging his pants. So, I think he has the right to the same kind of protection in that home." The Third District disagreed, holding that a temporary guest or visitor, such as the defendant, is not protected by the castle doctrine.

...posted by ⊥ 7:08 AM ⊥ #

Second District: Spoliation. If you're an avid follower of Florida's spoliation case law, check out the latest decision here. In the case, the Second District reversed an order that sanctioned a plaintiff with an allegedly defective knee implant for allowing the doctor who repaired the knee to discard the original implant materials.

...posted by ⊥ 6:55 AM ⊥ #

Second District: NICA Conflict. The Second District continues to certify conflict with most of the other district courts of appeal over whether an administrative law judge in a NICA case can determine whether NICA's statutory notice requirement were satisfied. The latest decision is available here. The Second District's earlier decision on this subject is available here.

...posted by ⊥ 6:47 AM ⊥ #

Questions, questions. The First District has, again, certified the following to the Supreme Court of Florida as a question of great public importance:

IS THE FLORIDA STANDARD JURY INSTRUCTION ON "POSSESSION OF PROPERTY RECENTLY STOLEN" AN IMPERMISSIBLE COMMENT ON THE EVIDENCE?

The district court's decision can be found here. To read an earlier case with a substantive discussion on the issue, look here.

...posted by ⊥ 6:41 AM ⊥ #

First District: No Rule, No Challenge.The Division of Administrative Hearings lacks jurisdiction to hear a challenge to a repealed rule. Makes sense. For more, see the First District's decision in this case.

...posted by ⊥ 6:34 AM ⊥ #

Thursday, December 18, 2003

Schiavo News. Governor Bush asked Judge Baird to delay the hearing previously set for Friday on the constitutionality of the new law that permitted the Governor to order Terri Schiavo's feeding tube reinserted. Yesterday, according to this story in the St. Pete Times, Judge Baird granted a brief extension -- until this coming Tuesday -- to accommodate the Governor's attorney's schedule, but the judge denied a request for a longer extension that would allow the Governor more time to investigate the case.

In non-legal news, this story from the Times explains that the Hospice where Terri has been staying is undergoing renovations, so she has been moved to another facility. Note that this story does not contain a line found at the end of the story on the judge's ruling: a line indicating that, according to the Schindlers, at her new location, Terri is more active and responsive than she has been since her feeding tube was removed and reinserted in October.

...posted by ⊥ 7:15 AM ⊥ #

Dealing Trouble. Michael Mayo, a columnist with the Sun-Sentinel, has this opinion piece on Lionel Tate and how the youngster should have taken a plea deal for a sentence that would already have him out of state custody. Perhaps Tate will get another chance.

...posted by ⊥ 6:58 AM ⊥ #

Nativity Scene Suit. For the latest on the pending suit over Palm Beach's refusal to include a nativity scene in a public holiday display, check out this story in today's Sun-Sentinel.

...posted by ⊥ 6:53 AM ⊥ #

Dust Aside… You may recall the money-laundering trial mentioned here yesterday at which voodoo dust keeps appearing in the courtroom. Today's Miami Herald has this story on the trial itself, which is against a South Florida attorney.

...posted by ⊥ 6:47 AM ⊥ #

Constitutional Concerns. Governor Bush would like voters to repeal the class-size constitutional amendment they approved last year, as reported in this story in today's Times-Union. Meanwhile, Johnnie Byrd appears less than optimistic about the Governor's thoughts of repealing the high speed rail amendment, according to this story from the AP. Voters approved that amendment in 2000.

...posted by ⊥ 6:39 AM ⊥ #

Wednesday, December 17, 2003

First District: Work Product. Yesterday, the First District released this decision offering some good, specific information on the showing that must be made to discover another party's work product.

...posted by ⊥ 7:32 AM ⊥ #

Med-mal Suit. Today's Tampa Tribune has this story on how a lawsuit against a doctor and a Tampa hospital claims the doctor had too little experience in using the robotic surgery tool that wound up killing a patient during surgery.

...posted by ⊥ 7:22 AM ⊥ #

Menorah Mess. Yesterday, Leon County changed its mind about funding, or even allowing, a menorah on county property, according to this story in today's Tallahassee Democrat. Compare that to the situation mentioned yesterday in this post -- Palm Beach is displaying a lighted menorah, which the town sees as purely secular, but not a nativity scene.

...posted by ⊥ 7:14 AM&n