Abstract Appeal -- by Matt Conigliaro

Sunday, October 31, 2004

IT Problems

A couple weeks ago, I posted about a 13+ mile run I had just finished, part of the marathon training I've been working on. I'm a casual jogger who started marathon training back in July, on the theory that I'm getting older and there's no better time to train to run a 26.2 mile-race than the present.

Maybe not. Have you ever heard of an IT band? I hadn't, even though I have two of them. Neither works. In fact, my legs don't work at all. Not since yesterday's run. It's been a long weekend. OUCH.

...posted by ⊥ 9:17 PM ⊥ #

Friday, October 29, 2004

Captured

Here I am. Sitting at my desk. Working hard on a brief. Skipping a lunch event with the local judges. Avoiding the blog. Suddenly, poof. This picture of a cat arrives, courtesy of an old friend. So I think to myself: this cat needs a caption. After the week I've had, and looking at the cat, only one caption will do:

Be The Cat
You know, I thought of this old friend recently when I started reading this article in the last Florida Bar Journal. Good article.

...posted by ⊥ 1:51 PM ⊥ #

Will They Or Won't They?

...challenge voters at the polls, that is. Today's St. Pete Times has this story on how the Florida Republican Party believes some felons who've not had their voting rights restored may have already voted. Challenges on election day are apparently being discussed.

For those not aware, Florida has a law that permits persons attempting to vote to have their voter eligibility challenged. The statute, which you can read here, requires that challenges be made under oath and sorted out immediately. If the issue cannot be resolved on the spot, the challenged voter is to use a provisional ballot, with the controversy to be sorted out later.

Note that challenges can be made by any elector. So if the person behind you in line to vote gives you any problems...

KIDDING!

...posted by ⊥ 8:25 AM ⊥ #

The Governor's Picks

Today's Palm Beach Post has this story on Governor Bush's views on some of the proposed constitutional amendments.

...posted by ⊥ 8:11 AM ⊥ #

Questions, questions

Remember the rule challenge that I discussed earlier this week? The Florida Democratic Party filed a petition in the First District seeking to invalidate the Secretary of State's recently promulgated emergency rule concerning vote recounts.

The First District rejected the challenge in a 2-1 decision. You can read that decision here.

I have no doubt an appeal to the Florida Supreme Court is already underway. The basis for the high court's jurisdiction will be the district court's certification of the following as a question of great public importance:

WHETHER, UNDER SECTION 120.54(4), FLORIDA STATUTES (2004), THE DEPARTMENT OF STATE SET FORTH SUFFICIENT JUSTIFICATION FOR AN EMERGENCY RULE ESTABLISHING STANDARDS FOR CONDUCTING MANUAL RECOUNTS OF OVERVOTES AND UNDERVOTES, AS APPLIED TO TOUCHSCREEN VOTING SYSTEMS?

...posted by ⊥ 8:03 AM ⊥ #

Bad Timing

There's much going on right now, and much to talk about, but in the last few days, work took on an unexpected 24/7 dimension. That's left me unable to focus on posting here. I'm going to take a few more minutes this morning and post a few interesting links (in some very terse posts), but I'll otherwise be out of pocket until this afternoon, when hopefully things will let up.

By this evening, I hope to be catching up. There's case law to talk about, and I have posts to finish regarding the six proposed constitutional amendments I haven't yet discussed. And the election cases... And so on...

...posted by ⊥ 7:53 AM ⊥ #

Schiavo News: Stay Restated

Restated by me, that is.

I'm going to try discussing the Florida Supreme Court's recent stay order, and I've removed my prior comments, which were confusing and not accurate.

Here goes: On Wednesday, Florida's high court granted Governor Bush's motion to stay the court's decision declaring "Terri's Law" unconstitutional. The order, available here, stays all proceedings in the constitutional case but does not affect the ongoing guardianship proceedings.

The court's stay order effectively leaves in place the Governor's order (issued pursuant to "Terri's Law") that Terri's feeding tube remain in place.

The court's stay will remain in effect through November 29, 2004, to allow the Governor time to seek a longer stay and review from the U.S. Supreme Court. The order indicates that the mandate will be reissued on November 30 if no further stay is granted by the U.S. Supreme Court. It is not clear whether the Florida Supreme Court's stay will remain in place if the U.S. Supreme Court also grants a stay.

...posted by ⊥ 7:39 AM ⊥ #

Wednesday, October 27, 2004

Abstract Pause

Be back later today, folks.

...posted by ⊥ 11:40 AM ⊥ #

Tuesday, October 26, 2004

Emergency Order Challenged in First District

Following up on the prior post, Judge Cohn's decision yesterday apparently relied on an emergency order promulgated about two weeks ago by the Secretary of State. The emergency order outlines procedures for recounting votes in Florida.

Though I haven't seen any media reports on this, on Friday, the Florida Democratic Party initiated a proceeding in the First District challenging the adoption of that emergency rule as being beyond the Secretary's power. The First District ordered a response from the Secretary by yesterday, and that response has now been filed. As I understand it, the response relies in part on Judge Cohn's ruling to support the rule's validity.

It seems there's a noteworthy interdependence between the rule and Judge Cohn's ruling. Given the extraordinary speed at which all of this election litigation is moving, it makes sense to wonder whether Judge Cohn's ruling will be immediately impacted if the First District (or the state's high court) were to declare the emergency rule invalid. It's also possible that the district court will not hear the case on its merits, deferring on the issues to an administrative forum, or that the court will not be able to rule in time to impact any recount stemming from next week's general election.

Stay tuned.

...posted by ⊥ 8:20 AM ⊥ #

Paper Trail Suit: Lost

If you've followed the ups and downs of U.S. Representative Robert Wexler's lawsuit to require all of Florida's voting machines to utilize a paper trail, then you'll be interested to know that, yesterday, Southern District of Florida Judge James Cohn entered an order rejecting Wexler's claims on their merits. The court held a three-day trial on the matter last week. The ruling rejects Wexler's arguments that constitutional principles of equal protection require paper trails to be utilized in all Florida counties.

Read more about the ruling in this story from today's Sun-Sentinel.

For more on the case's history, see this prior post, and this one, too.

...posted by ⊥ 7:23 AM ⊥ #

Monday, October 25, 2004

Schiavo News

The Schiavo saga apparently knows no bounds. In the Florida Supreme Court, we saw this order entered today, giving Michael Schiavo until noon tomorrow to respond to the Governor's motion to recall the court's mandate and enter a stay. That's a rather quick deadline.

Mid-day deadlines usually make me expect late-day rulings.

On another front, Michael has filed this motion with Judge Greer. In it, Michael argues that the court lacked subject matter jurisdiction on Friday when it entered an order staying the other order the court entered Friday. The stayed order denied the Schindlers' latest motion for relief from the original judgment.

I could get into the legal merits of the subject matter jurisdiction argument, but I'm going to skip that discussion because the merits seem not to matter. The motion concedes that, in all events, the trial court would have jurisdiction to enter a stay once the Schindlers have noticed their appeal of the order. That appeal will no doubt be filed as soon as might be necessary to ensure a stay remains in place. Of course, the motion could certainly be wrong about the trial court's supposed lack of jurisdiction, too.... Either way, the feeding tube is not going anywhere for the time being. No doubt, Florida's courts will resolve the Schindlers' latest motion for relief from judgment on its merits, and right now that means after the Second District has heard the Schindlers' inevitable appeal.

FYI, under ordinary circumstances, the Schindlers could file their notice of appeal as many as 30 days from the date the trial court denied their motion, and they would then have 15 days from when they filed their notice to serve their initial brief in the Second District. Expect things here to happen a bit quicker than all that.

...posted by ⊥ 8:15 PM ⊥ #

Proposed Constitutional Amendment No. 2

Continuing my review of the proposed constitutional amendments, I'm going to take a look at Proposed Constitutional Amendment No. 2. This proposed amendment concerns citizens initiatives -- those proposals to amend the state constitution that originate not with some governmental entity but with the citizenry.

The proposal advances the date by which citizens initiatives (complete with all required signatures) must be filed with the Secretary of State prior to the election at which the electorate will vote on the proposal. Article IX, section 5 of the Florida Constitution currently sets the pre-election deadline at 90 days. Proposed Amendment No. 2 would set the deadline at February 1 in the year of the relevant general election, and would require the Florida Supreme Court to render an opinion on the validity of the proposal by April 5 of that year.

This is precisely the sort of subject that a constitution should address: the method by which our state's foundational document is amended. The question for voters is whether to approve this proposal, which, by the way, is sponsored by the Florida Legislature.

Some recommend voting against this proposal because it supposedly disfavors the less organized, lesser funded initiative drives by giving sponsors less time to get the required voter signatures collected and submitted. My local paper, for instance, has taken this point of view.

That view appears flawed and likely uninformed about the current legal process. Under the current statutory scheme, signatures are valid for four years from the time they are obtained. You can read the relevant statute (subsection (2)) here. Advancing the deadline by approximately 5 months is hardly a meaningful change in the time that sponsors have to meet the signature requirements. It's not as if there's a short window of time in which to collect signatures. You have four years from the time you start collecting them to the time you finish.

That view also ignores the reality of today's election warfare. Like everything else concerning elections at this point in time, citizens initiatives are becoming more and more contested. For instance, we've seen challenges to, and litigation over, the validity of the signatures submitted in support of the proposal. That's predictable. The current number of required signatures is 488,722 -- that's an awful lot of signatures to have to verify were actually made by properly registered voters in a proper distribution across the state, and an awful lot of signatures to squabble over if that's in your interests.

Keep in mind that promoting citizens initiatives has given rise to a cottage industry of sorts, with sponsors routinely hiring groups to collect signatures. (If you live in a well-populated area, you've probably seen signature collection tables at all sorts of public events. I live in downtown St. Pete, which hosts about an event a week at the downtown waterfront parks, and the assembly of signature gatherers at all sorts of events prior to the deadline is always formidable.) The signature-gathering groups in turn hire folks to collect the actual signatures, persons who are low paid and, by my experience, know almost nothing about the proposals they're there to advance. If you believe the allegations being made in various cases, some of the signature gatherers are meeting their (employer imposed) signature quotas by forging signatures, rather than by collecting them from the public.

Advancing the submission deadline gives the system more time to sort out these problems in a manner that is fair not only to the litigants but the courts and others involved in this process.

Another significant advantage to increasing the time between submission of a citizens' initiative and the general election is to permit time to resolve issues that may arise concerning the initiative's financial impact statement. You may recall that, in 2002, Florida voters approved this constitutional amendment, which requires "financial impact statements" (i.e., price tags) to be placed alongside citizens initiatives on the ballot. (Many think that had this sort of statement been in place prior to the vote on the class-size amendment, for instance, voters would not have approved it.)

The Legislature has set up the procedures for creating financial impact statements, getting them reviewed by the Florida Supreme Court, and revising them if necessary. Check out subsection (6) of this statute. Asking to have all of the required litigation, let alone other legal issues that may arise, resolved if the submission deadline for a citizens initiative remains 90 days prior to a general election is asking more than a lot of Florida's courts and the Financial Impact Estimating Conference. In some instances, it can be asking way too much: subsection (6)(b)4 of the above-linked statute explains that where an estimate is initially rejected by the Florida Supreme Court and no revision is approved prior to the 75th day before the election, the ballot shall simply indicate that the financial impact of the measure cannot reasonably be determined.

Think about that. If a citizens initiative is filed 90 days out from the election and the initial impact statement is not approved, we get a "no info" statement on the ballot unless the statement is revised and then approved by the 75th day from the election. Exactly how does that work? Marathon overnight work sessions for everyone involved?

Whether the recent proliferation of election-related challenges can be considered a good thing is certainly questionable, but if recent history is any indication, election litigation sure seems inevitable. Our courts and other civil servants have taken extraordinary steps to resolve these matters under unbelievable time constraints. If we wish these matters to be resolved fairly and accurately, without forcing the judiciary to perform under almost impossible time constraints, the system needs to expand the resolution period. Proposed Constitutional Amendment No. 2 will do this in the area of citizens initiatives.

If you think the current timeline is more fair to all involved than the advanced timeline set forth in Proposed Constitutional Amendment No. 2, then vote against this amendment. If you believe otherwise, vote for it.

...posted by ⊥ 8:20 AM ⊥ #

Schiavo News

In two prior posts from Saturday, I noted newspaper reports stating that the Governor had requested the Florida Supreme Court to stay its latest decision, and I offered the view that any such motion could not be granted unless the court first recalled its mandate in the case, which had already been issued.

Well, the folks at Terri's Fight have posted the Governor's filings from Friday and it turns out the Governor has asked the high court not only to stay its decision but to recall its mandate. That's procedurally necessary for the court to consider granting the stay the Governor seeks, and it takes care of the concern I raised over the weekend.

You can read the motion to recall the court's mandate here.

...posted by ⊥ 8:15 AM ⊥ #

Sunday, October 24, 2004

Smoker Trial Award

A Tampa jury awarded a smoker $240,000 in a case based on the notion that cigarettes are defective, according to this story in the St. Pete Times. Appeal to follow.

...posted by ⊥ 10:56 PM ⊥ #

Legal Practice

While posting tonight, I find myself watching Boston Legal, the latest in a line of tv legal comedy/dramas. It's entertaining, like its predecessors. Purely entertaining. At least two events depicted in tonight's episode would likely get a lawyer disbarred in Florida. Probably three. And there are still 20 minutes left.

...posted by ⊥ 10:40 PM ⊥ #

Fifth District: Hearsay (Schiavo Connection)

Over the past year, I've exchanged innumerable emails with persons who are convinced the trial court in the Terri Schiavo case should never have relied on hearsay from Terri's husband and his family regarding prior statements Terri made. (These folks doubt she actually made them.) I've tried to explain to them why hearsay in that situation was admissible and that hearsay is often admissible.

In that vein, here is a decision from the Fifth District in which the court affirmed a criminal conviction based solely on hearsay. The case includes an interesting Confrontation Clause discussion. Now, the reasons the hearsay was admissible in this case have nothing to do with the hearsay utilized in the Schiavo case, but I point it out simply as an example of how a myriad of reasons allow hearsay to be admitted in a particular case.

...posted by ⊥ 10:30 PM ⊥ #

Supreme Court & Fifth District: MRTA & Statutory Ways of Necessity

Does Florida's Marketable Record Titles Act apply to statutory ways of necessity established under section 704.01? In a 1999 decision, the Florida Supreme Court said yes, it does.

However, in this decision released by the Fifth District on Friday, the district court held that the supreme court's 1999 language was dicta and thus not a binding holding. Conflicting with a Second District decision (in addition to the high court's statement), the Fifth District concluded that statutory ways of necessity survive despite application of the Marketable Record Title Act. The court also certified a question of great importance to the Florida Supreme Court.

That question no longer needs to be answered, and I assume the Fifth District will modify its opinion to conform to this decision released one day earlier by the Florida Supreme Court. The high court disapproved the Second District's conflicting decision and reached the very result made here by the Fifth District. So there's no longer any conflict, and no need for a certified question.

...posted by ⊥ 10:25 PM ⊥ #

Fourth District: Employee Depositions

Trial lawyers should take note of this decision from the Fourth District, which clarifies that an employee's deposition may be read by an adverse party at trial regardless of whether the employee is available for trial.

...posted by ⊥ 10:21 PM ⊥ #

Fifth District: PIP Coverage for Med Services By Contractors

Those involved in PIP medical insurance coverage litigation will be interested in this decision from the Fifth District. The court held that services provided by use of an independent contractor can constitute medical services under section 627.736(5)(a).

...posted by ⊥ 10:18 PM ⊥ #

Saturday, October 23, 2004

Schiavo News, Thoughts

Today's Tampa Tribune has this update on the Schiavo saga. It describes several items that seem noteworthy.

First, the story states that the Governor has filed a motion asking the Florida Supreme Court to stay its decision while the Governor pursues an appeal in the United States Supreme Court. This is bizarre for a couple of reasons.

It would be a rare thing indeed for the state supreme court to stay its decision while a litigant seeks U.S. Supreme Court review. Most litigants just ask the U.S. Supreme Court to enter a stay.

What seems dispositive here, though, is that the Florida Supreme Court has already issued its mandate in the case. A mandate is an appellate court's final directive to a lower court, and its entry signals the end to the appellate court's jurisdiction in the case. While it may be possible that the Governor's motion was filed prior to the mandate's entry, it would seem that the court is without jurisdiction even to consider granting a stay request unless the court first recalls its mandate. That would seem highly unlikely, especially if no motion asking for that relief is before the court.

The second noteworthy item from the Tribune's story concerns the comments of Michael Schiavo's attorney. According to the story, the Governor filed his stay motion after Michael's counsel stated Michael would attempt to remove the feeding tube as early as Friday. (I assume that means next Friday.) Such a statement seems nonsensical. Judge Greer ruled yesterday that the Schindlers' latest motion fails to state a claim for relief. The Schindlers have a right to appeal that decision, a right that would be completely nullified if Terri's feeding tube were to be removed before that appeal could be completed. Florida's appellate courts have proven their sensitivity to this point. It's simply not going to happen that Terri's feeding tube is removed before that appeal is completed. Period.

The last noteworthy item from the story concerns the Governor's counsel's statement that the appeal to the U.S. Supreme Court will ask that court "to restore the balance of power between Florida's judicial branch and the legislative and executive branches." It would seem unlikely that any appeal to the nation's high court is actually going to concern the balance of power among the branches of a state's government, and even less likely that the U.S. Supreme Court would hear such a case. The U.S. Supreme Court resolves federal issues, not state issues, and then only extremely significant federal issues.

...posted by ⊥ 7:08 PM ⊥ #

Schiavo Posts

I've noticed that many folks are making their way to this blog to find information on the Terri Schiavo case, so I've gone ahead and updated the "2004 Schiavo Posts" page to reflect all of Abstract Appeal's 2004 posts concerning the Schiavo saga through yesterday. It's an awfully large page, as there have been an awful lot of Schiavo posts.

If you're new to the Schiavo litigation, you can find links to Abstract Appeal's 2003 and 2004 post compilation pages at the top of the left column of this page. Find some spare time -- well, maybe a spare day -- and feel invited to catch up.

...posted by ⊥ 5:45 PM ⊥ #

Schiavo Thought

I see from some wire reports that Governor Bush may have filed a motion in the Florida Supreme Court asking it to stay its decision while an appeal is filed with the United States Supreme Court. I'm about to run out the door (literally) for my weekly distance run, so I'll have to post about this at length later today. For now, I'll comment that if those reports are true, the motion seems certain to be denied. As I'll explain later, Florida's high court has already issued its mandate. The case there is over unless the court is asked to, and does, recall that mandate.

...posted by ⊥ 6:30 AM ⊥ #

Friday, October 22, 2004

Schiavo News

You may recall that, some months ago, the Schindlers filed a second motion for relief from Judge Greer's original judgment regarding Terri's wishes. The new motion, which you can read here, alleged that Pope John Paul II's statements last March regarding feeding tubes would cause Terri to change her mind regarding whether she would decide to continue receiving her feeding tube. (You can read the Pope's statements here.)

Today, Judge Greer ruled that this latest motion fails to present a sufficient basis for relief from the prior judgment. You can read Judge Greer's order here. The order does not disagree with the Pope's statements, or make any interpretation of them. Instead, the court ruled that, based on the court's earlier findings regarding Terri's religious convictions, nothing stated in the motion shows that Terri would change her mind.

Judge Greer also entered a second order staying his ruling on the motion for relief until December 6, 2004. You can read that order here.

Simply put, this means that the Schindlers have lost their most recent effort to overturn Judge Greer's original decision regarding Terri's wishes, and they will now have an opportunity to appeal Judge Greer's latest order to the Second District Court of Appeal.

...posted by ⊥ 8:02 PM ⊥ #

Caught...

That's where I was today. Caught. I attended the Appellate Practice Section's Hot Topics seminar in Miami. (Which was great, by the way.) I had my laptop, but the hotel offered no public wireless Internet access. I had my Treo, but I neglected to charge the battery fully before I hopped the plane and the phone's charge ran out around noon. So there I was, caught with lots of equipment but no way to use it... I'm in the Ft. Lauderdale airport now, waiting for my flight home. The airport offers free wireless Internet access. Thank goodness.

I see that Judge Greer issued his order in the Schiavo case. Need to blog that right away...

...posted by ⊥ 7:58 PM ⊥ #

Thursday, October 21, 2004

Schiavo News

As you can read in this order, the Florida Supreme Court has denied Governor Bush's motion for rehearing in the Schiavo case. The court's decision declaring "Terri's Law" unconstitutional is thus final.

I've already been asked about whether an appeal to the United States Supreme Court would stay the case and prevent Terri's feeding tube from being removed until that appeal is resolved. The answer is that it could, if the U.S. Supreme Court were to grant a stay. Unlike the situation under Florida law, a decision by the Governor to appeal would bring no automatic stay. Governor Bush could file a motion requesting a stay, and the court could grant it. I'll post more on this topic later -- for now, the ongoing proceedings before Judge Greer pretty much ensure that Terri's feeding tube will not be removed in the immediate future.

...posted by ⊥ 3:09 PM ⊥ #

Proposed Constitutional Amendment No. 1

I'm going to begin discussing, from a legal perspective, the proposed constitutional amendments that are on the Florida ballot this election. It seems logical to start with the first proposal, which concerns the contentious issue of abortion. I'm not going to express (or imply) any view on whether anyone should vote for or against this amendment, so please don't take my comments in one of those directions. I'm simply going to discuss the legal issues surrounding this proposal. As with all of the amendments, I will try to focus on what the amendment says, what it changes, why that change is being promoted, and what the legal impact of the amendment will be.

The text of the first proposed constitutional amendment reads as follows:

The legislature shall not limit or deny the privacy right guaranteed to a minor under the United States Constitution as interpreted by the United States Supreme Court. Notwithstanding a minor's right of privacy provided in Section 23 of Article I, the Legislature is authorized to require by general law for notification to a parent or guardian of a minor before the termination of the minor's pregnancy. The Legislature shall provide exceptions to such requirements for notification and shall create a process for judicial waiver of the notification.

The first sentence -- no doubt strategically placed to begin the proposal with such a noble declaration -- is substantively awkward. Declaring that the Legislature shall not abridge anyone's rights provided under the federal constitution, as interpreted by the United States Supreme Court, is in large measure pointless, since the supremecy of federal law would make any state law contravening federal rights invalid anyway. But there's more here. The Florida Legislature proposed this amendment, and the reference to federal law as interpreted by the federal high court, as opposed to Florida's own high court, is, to put it nicely, a bit of a poke. (I'll get to why the Legislature would do that in a moment.) The first sentence also serves another purpose -- it confirms that the amendment is meant to be read in harmony with federal law, something that may be significant if any state legislation based on this amendment were to be seen as potentially conflicting with federal law.

The second and third sentences of the proposal are its heart. They empower the Legislature to enact laws that require a minor's parents to be notified before her pregnancy can be terminated, and to enact a judicial process for getting around the notification requirement in individual cases.

You might wonder why the Legislature cannot pass such laws without such an amendment. It has tried, and the Florida Supreme Court has declared the efforts unconstitutional. To be more specific, the Legislature has previously passed two laws relating to abortion and minors. The first law required parental consent before a minor could terminate her pregancy, though it left an option for minors not able or willing to obtain parental consent to obtain instead a judge's permission to avoid the requirement. The Florida Supreme Court interpreted Florida's constitutional right to privacy to apply to abortions and to minors and, finding the law too great a burden on that right, declared it unconstitutional.

Years later, the Legislature took a different approach and passed a law requiring not parental consent but parental notification before a minor could terminate her pregnancy. The law again included a procedure where minors unable or unwilling to have their parents notified could seek permission from a court to avoid the requirement. The Florida Supreme Court again declared the law unconstitutional as violating minors' right to privacy under the Florida Constitution. That decision was released in 2002, and you can read it here.

By the way, under both prior laws, the person whose conduct was directly regulated was the medical person performing the procedure. The law required that person to ensure that the consent or notification requirement had been met. The laws did not directly require a minor to do anything and punish her for not doing so. Also, the laws in both instances were rather detailed and contained various exceptions and qualifications. I'm necessarily oversimplifying in this discussion.

Needless to say, the Legislature thinks the Florida Supreme Court has read the state privacy right too broadly and that it does not give minors an unfettered right to undergo abortion procedures without their parents' knowledge. As a result, the Legislature proposed this constitutional amendment, which is the only way to change Florida's constitutional law as it has been interpreted by the Florida Supreme Court. If the proposal passes, the new amendment will permit the Legislature to adopt another parental notification law, and it will preclude the Florida judiciary from declaring that law unconstitutional under Florida's constitutional right to privacy.

Here's some additional legal context on the federal and state levels.

The United States Supreme Court has held that parental notification laws, along with a judicial bypass component, do not violate the federal constitution's right to privacy. You can read one of those decisions here.

Florida law generally prevents anyone from performing any sort of medical act on a minor child without the minor's parent's permission, since the act can be considered a common law battery. Florida also has specific statutes requiring various levels of parental involvement in other medically-related situations. For instance, under this statute, a minor must have written, notarized parental consent before getting a body piercing, and minors under 16 cannot have their bodies pierced unless they are accompanied by a parent. Under this statute, a minor cannot use a tanning salon without a parent's written consent, and minors under 14 must be accompanied by a parent to use a tanning device. And under this statute, a minor cannot obtain a tattoo without a parent's written consent.

In the end, the issue presented by this proposal can be seen in either, or perhaps both, of two ways, depending on your personal views. It can be seen as an effort to encroach on a minor's constitutional right under Florida law to obtain an abortion without undue interference. The proposal can also be seen as an effort bring Florida law in line with federal law and not allow minors' privacy rights to override a legislative determination that parents should be informed when their minor children undergo abortion procedures.

...posted by ⊥ 2:50 PM ⊥ #

Proposal Talk

While I've followed some of the news reports, I've not yet offered my own thoughts regarding Florida's proposed constitutional amendments. That'll change around midday today, when I'll start doing my best to offer folks an objective, legal view of what's being offered on the 2004 ballot and what it all means.

...posted by ⊥ 8:13 AM ⊥ #

Manual Recount Suit, Rocketing Forward

Remember this post from not quite a month ago, describing how the Eleventh Circuit remanded U.S. Representative Robert Wexler's manual recount lawsuit back to a federal district court for trial? Well, the trial's just wrapped up, and today's Palm Beach Post has some early details in this report. You can also check the old post for more on the case and a link to the circuit court's decision.

...posted by ⊥ 8:07 AM ⊥ #

Third District: Binding The Blind

Can you avoid a contract on grounds you were legally blind when you signed it? In this case, which concerned an arbitration agreement, the Third District said no.

...posted by ⊥ 8:03 AM ⊥ #

Second District: Tax Unconstitutional, Unconstitutional

This decision released yesterday by the Second District is significant in two respects. The decision declared unconstitutional Florida's tax on citrus production because the tax is used to fund a state-run marketing campaign -- i.e., compelled speech. Monetarily speaking, this is a tremendous blow to the Department of Citrus and a huge victory for citrus growers.

The case is also interesting because it has the rather rare distinction of offering two opinions, both of which are majority opinions of the court.

The first opinion was written by Judge Dakan (of the Sarasota trial bench) and was expressly joined by Judge Salcines. Separately, Judge Casaneuva wrote an opinion expressing that he fully concurred in Judge Dakan's opinion and offering additional thoughts on the still-evolving case law in the tax-to-compel-speech area. Judge Casaneuva's opinion was also joined by Judge Salcines, making the opinion also one agreed to by a majority of the panel's judges.

...posted by ⊥ 7:56 AM ⊥ #

Third District: Lookout Warnings and Obstructing Justice

If a lookout spots nearby police officers and shouts that information, in a bit of code, to those engaging in a drug deal, has the lookout committed the crime of obstructing justice? Check out the interesting majority and dissenting opinions in this case from the Third District.

...posted by ⊥ 7:54 AM ⊥ #

Wednesday, October 20, 2004

Eleventh Circuit: Welcoming You To The World Of Wiki

The preceding post discussed the substance of this recent opinion from the Eleventh Circuit. There's one noteworthy aspect of the opinion, though, that I did not mention. In describing the Homeland Security Advisory System, Judge Tjoflat cited Wikipedia. In text, no less. (Page 16.)

Let's put this in perspective. According to the well indexed annals of Westlaw, this was the first time the Eleventh Circuit has cited Wikipedia. It's also the first time any federal court of appeals has cited Wikipedia. And it's only the third time that any American court has cited Wikipedia: three weeks ago, a federal district court cited Wikipedia in a footnote, and three months ago, Michigan's high court cited Wikipedia in a footnote.

So this was the first time any American court has cited Wikipedia in text, and the first time any federal appellate court has cited Wikipedia at all.

So is it Judge Tjoflat himself who is the encylopedic adventurer, or a bold young law clerk? Or both? I'll play it safe and guess both.

Why the hubbub? Wikipedia is a truly modern device. It's a free, Internet-based, incredibly detailed, massively hyperlinked encyclopedia. It's also written by people like you and me. Entries and updates are submitted around the clock by the public at large. (Well, maybe the geeky, blogs-are-old-school-I'm-going-to-write-an-Internet-encyclopedia part of the public at large.) To date, Wikipedia has about 375,000 articles in its database, and they grow and morph on a daily basis.

It will be interesting to watch and see if Wikipedia citing truly catches on in opinions or appellate briefs. It's possible that it will not, perhaps out of concern that the person citing an entry is directly or indirectly responsible for the entry's contents in the first place. I doubt that, though. Wikipedia and projects like it are the future.

...posted by ⊥ 7:14 AM ⊥ #

Eleventh Circuit: Protesters' Protest

This decision from the Eleventh Circuit is just chock full of notable items. Issued this past Friday, the court held that metal detector searches of protesters outside Georgia's Ft. Benning, which houses the U.S. Army's School of the Americas, violate the First and Fourth Amendments.

Hmmm. Where to begin? Factually, the case's backdrop is interesting, though it's understated in the opinion. The SOA "trains military leaders from other countries throughout the Western Hemisphere in combat and various counterinsurgency techniques," the court explained. The court also offered the protesters' point of view, that the SOA "bolsters military dictatorships by training their leaders how to kill, to torture, and otherwise to suppress their citizens." I'll avoid the obvious jokes about law school.

Legally, the case offers some gems. The First and Fourth Amendment discussions are very thorough and will give constitutional fans a heaping dose of solid con law, including a rare "unconstitutional condition" analysis. A strangely interesting part of the opinion, though, is the mootness examination. The court acknowledged that the specific protests at issue in the case were over and that the case was accordingly moot. Nonetheless, the court found the case reviewable, as one capable of repetition and yet evading review. The court did so despite a footnote mentioning that damages were not at issue in this case (because the trial took place before the searches were conducted) and that the protesters were free to litigate damages claims over the now-completed searches. Of course, the damages litigation could not have concluded before one or more additional years of the annual protests would occur, but the court did not frame the mootness analysis in these terms. Ultimately, the opinion offers a strong basis for arguing that, in the First and Fourth Amendment contexts, mootness on appeal may likely be overcome where additional, repeated constitutional violations are plainly on the horizon.

The mootness discussion included a reference to a 2001 case in which the court held that election periods are too short to fully litigate the constitutionality of a law before a given election ends. That's no doubt still true, but it has to be said with a bit of a smile after watching the Florida courts rocket through some recent election cases in a matter of weeks -- a process we should appreciate but not come to expect.

There is one final point to make about this case, but I'm going to blog it separately in the next post. It's trivial, but it's good trivia.

...posted by ⊥ 7:02 AM ⊥ #

Tuesday, October 19, 2004

Eleventh Circuit: Expert Testimony

If you set out to find an Eleventh Circuit case that explored, in detail, the substantial discretion afforded a trial judge in evaluating an expert's qualifications to render an opinion and the reliability of that opinion, you would need to look no further than here. You'd have found yourself 127 pages of en banc bliss on the subject, complete with a special concurrence and a dissent. Also, if you are an appellate lawyer, you might come away from the case questioning whether, especially in civil cases, you will ever have a realistic hope of succeeding with an expert-related appeal.

For the trivially oriented, I point out that the majority, two concurring, and dissenting opinions in this 127-page case presented a total of 76 footnotes. One of them, note 21 of the majority opinion, spans three pages of single-spaced text. So, in this year's longest footnote event, I believe we have a new leader.

...posted by ⊥ 3:29 PM ⊥ #

Eleventh Circuit: Arbitration

Arbitration fans will be interested in this decision from the Eleventh Circuit. The court addressed the circumstances under which NASD members may be compelled to arbitrate with customers, and how broad the term "customer" is.

...posted by ⊥ 1:51 PM ⊥ #

Eleventh Circuit: Freedom of (Religious) Speech In School

If a school allows students to paint murals on a temporary wall used to cover a construction area, and the school requires a student who painted religious messages to remove them, has the school violated the student's right to speak? Not in this case recently decided by the Eleventh Circuit.

...posted by ⊥ 1:26 PM ⊥ #

Appellate Reminder

Today's the monthly lunchtime teleconference for the Appellate Practice Section of The Florida Bar. Section members are reminded to grab a lunch and join in for the call's 12:10 start. The topic will be the insurmountability of the PCA.

...posted by ⊥ 7:49 AM ⊥ #

Eleventh Circuit: Child Pornography

Anyone who enjoys constitutional law, particularly case law addressing the constitutional limitations of Congress's powers, will be very interested in this decision from the Eleventh Circuit.

Addressing the conviction of a St. Petersburg man for possessing child pornography on computer disks, the court first held that the disks' movement in interstate commerce was sufficient to satisfy the federal jurisdictional element of 18 U.S.C. section 2252A(a)(5)(B).

However, under the specific facts of the case, the court went on to hold that the storage media's out-of-state origin was not sufficient to permit congressional regulation of the defendant's activity under the Commerce Clause. The court's discussion is hardly short but is thorough and terribly interesting.

...posted by ⊥ 7:44 AM ⊥ #

Eleventh Circuit: Environmental Law

This divided decision from the Eleventh Circuit should interest those involved with environmental law. The court addressed standing, subject-matter jurisdiction, and a host of other issues in connection with claims under the Clean Water Act and the Resource Conservation and Recovery Act.

...posted by ⊥ 7:43 AM ⊥ #

Catching Up

The heavy workload that delayed some of my state case law posts earlier this month also took its toll on my discussions about some very noteworthy Eleventh Circuit opinions. I'll get to them over the course of today.

...posted by ⊥ 7:39 AM ⊥ #

Fifth District: Easements

Land use fans will be particularly interested in this decision from the Fifth District. It covers a number of points, including that a person owning two adjoinding parcels of land in the same right cannot create an easement over one in favor of the other.

The court also acknowledged something about the judiciary's equitable powers that bears repeating once in a while: "Courts of equity simply have no power to issue rulings which they consider to be in the best interest of justice without regard to established law." In other words, a court's equitable powers are not unbounded. The court must still follow the law, even if application of that law produces a result that, between the parties in the case, seems unfair. That's what we mean in saying we are governed by the rule of law.

...posted by ⊥ 5:59 AM ⊥ #

Monday, October 18, 2004

Supreme Court: Provisional Ballot Precinct Challenge Rejected

Early voting starts today in Florida, and just in case any elections supervisors were wondering whether Florida's precinct requirements are constitutional under Florida law, we have an answer. Today, in this decision, the Florida Supreme Court rejected the AFL-CIO's constitutional challenge to the Florida statute requiring that provisional ballots be cast only in voters' correct precincts.

The case had previously been rejected by a Tallahasee trial court (Judge Smith) and transferred to the supreme court for immediate resolution, given the pending election. The court heard oral arguments this past Wednesday.

Provisional ballots are used when a person appears at the polls and finds himself or herself not listed as a registered voter. The person can cast a provisional ballot, which is held until elections officials confirm the person is in fact qualified to vote. Importantly, though, as with voters who are on the voting rolls and cast actual ballots, those who cast provisional ballots must do so in their assigned voting precincts. The petitioners in this lawsuit sought to invalidate the precinct requirement, claiming that it was an unconstitutional restriction on the right to vote under Article VI, sections 1 and 2 of the Florida Constitution.

In a very short, 7-page opinion, a unanimous Florida Supreme Court rejected that argument. The court held that the precinct requirement for provisional ballots is indistinguishable from the precinct requirement for actual ballots and that neither is an unconstitutional restriction on the right to vote. The court viewed the precinct requirement as a permissible regulation on the voting process, not an impermissible voter qualification.

The analytical portion of the decision is only about one page long. The unanimous court also indicated that no rehearing will be permitted. These facts suggest that the court did not find the petitioners' arguments very strong.

Had the petitioners' argument prevailed, it would seem that voters could appear at any precinct in their county of registration and demand a provisional ballot if their names were not on the voter rolls, as would always be the case in every precinct except the single one where they should be listed. That would pretty much have gutted the entire precinct concept.

If this is the last elections case the supreme court must decide, it's going to be a marvelous election.

...posted by ⊥ 2:29 PM ⊥ #

Thoughts From Major Harding

Today's Tampa Tribune has this very interesting story, which reflects Former Chief Justice Major Harding's thoughts on the 2000 election crisis and the latest presidential election, now underway.

...posted by ⊥ 8:28 AM ⊥ #

Second District: Premises Liability

The facts of this case have the ring of a law school tort exam. If you've an interest in premises liability, check out how the Second District addressed the situations of an allegedly misleading private way and a pipe used to block off-road access onto private property.

...posted by ⊥ 8:10 AM ⊥ #

Second District: Contingency Fees

Plaintiffs' lawyers may be interested in the Second District's decision in this case, which rejected an effort to expand the traditional limits on an attorney's ability to recover, post-withdrawal, a contingency fee from a former client.

...posted by ⊥ 8:08 AM ⊥ #

Second District: Copyright Preemption

Deep in the heart of this business dispute decision, the Second District engaged in a copyright preemption analysis concerning state law claims. Intellectual property fans may be interested.

...posted by ⊥ 8:07 AM ⊥ #

Second District: Discovery of Others' Records

Trial attorneys may wish to check out this decision from the Second District. A trial court in a nursing home case compelled disclosure of various records relating to persons other than the decedent in the case. The home sought a writ of certiorari from the Second District on grounds of irrelevancy and medical privacy. The district court granted the writ, but only with respect to the privacy argument. The district court held that proper steps to protect other residents' privacy should be followed but otherwise permitted the discovery.

...posted by ⊥ 8:06 AM ⊥ #

Second District: High-Profile Dissolution

Lest anyone think otherwise, the public airing of otherwise private information in a dissolution proceeding affects attorneys, too. Here's an example.

...posted by ⊥ 8:05 AM ⊥ #

Second District: Pre-Judgment Interest and Settlement Proposals

This decision from the Second District confirms that prejudgment interest need not be specially pled as an element of damages and can be recoverable, under certain circumstances, when raised only after a jury verdict is returned. Also, while examining the validity of a proposal for settlement, the court used a footnote (number 4) to explain the lack of conflict in existing case law regarding proposals by vicariously liable defendants.

...posted by ⊥ 8:00 AM ⊥ #

Friday, October 15, 2004

Second District: Entering the Knowles Divide

Florida's district courts of appeal are divided over whether, under a law in effect from 1986 to 2001, a nursing home resident's estate could bring a claim against a home for violating the resident's Chapter 400 rights if the violation did not result in the resident's death. The relevant statutory language provided:

The action may be brought by the resident or his or her guardian, by a person or organization acting on behalf of a resident with the consent of the resident or his or her guardian, or by the personal representative of the estate of a deceased resident when the cause of death resulted from the deprivation or infringement of the decedent's rights.

(emphasis added).

In 2000, the Fourth District, sitting en banc, unanimously ruled that the plain language of this statute only permitted estates to bring residents' rights claims if the alleged violation resulted in the resident's death.

Earlier this year, in this decision, the Fifth District disagreed. That court found the statutory language ambiguous and looked for guidance to the Legislature's 2001 amendments to this statute, which permitted an estate to sue for any violation causing injury.

Today, the Second District weighed in on this split and agreed with the Fourth District that the former statute's language was unambiguous and its plain meaning controls. You can read the Second District's decision here.

To add a little context here, the significance of the dispute is really about attorney's fees. The pre-2001 version of the statute permitted a successful plaintiff to recover attorney's fees as well as compensatory damages. When the Legislature amended the statute in 2001, the Legislature changed the language to provide that estates could sue for any violation causing injury but took away the ability to recover fees.

To add a little trivia here, the Fourth District certified a question of great public importance concerning this interpretation issue in 2000. The Florida Supreme Court heard oral arguments on that issue on August 31, 2001. No decision yet.

...posted by ⊥ 1:24 PM ⊥ #

Appellate Reminder No. 2

Next Friday, in Miami, the Appellate Practice Section of The Florida Bar hosts its annual Hot Topics Seminar. I'm helping coordinate this one, so I'll be down there and will likely be introducing two of the speakers, electronic filing guru Judge Martha Warner and the incredible Kendall Coffey. Great speakers. Great topics. (A timely bonus, Kendall's going to speak on hot topics regarding elections cases -- can't imagine what he'll have to talk about...)

Be there if you can. For more info, look here.

...posted by ⊥ 8:12 AM ⊥ #

Appellate Reminder No. 1

Tuesday will be the monthly lunchtime teleconference for the Appellate Practice Section of The Florida Bar. Section members are reminded to grab a lunch and join in for the call's 12:10 start. The topic will be the insurmountability of the PCA.

...posted by ⊥ 8:02 AM ⊥ #

Eleventh Circuit Reminder

A bevy of posts since yesterday pm has pushed down my post about the recent decision approving the recess appointment of Judge William Pryor to the Eleventh Circuit. That's a terribly interesting decision in the appellate community (and some political circles, too). If you're among the interested, be sure to scroll down to it.

...posted by ⊥ 7:54 AM ⊥ #

Fourth District: The Value of A Dollar

Those with an interest in family law may wish to check out this decision from the Fourth District, which highlights the distinction between terminating alimony and reducing it to, say, a dollar a month.

...posted by ⊥ 7:46 AM ⊥