The Orlando Sentinel reported late last night that Governor Rick Scott has appointed former assistant state attorney Wayne Wooten to the circuit court for Florida’s Ninth Judicial Circuit. The governor’s website did not reflect the appointment at this time of this writing; reader’s can look for the governor’s press release concerning this and other recent appointments here.
Tom Appeals Blog
News and Observations About Law and Society
"It is far more rational to suppose, that the courts were designed to be an intermediate body between the people and the legislature, in order, among other things, to keep the latter within the limits assigned to their authority." - The Federalist No. 78 (Alexander Hamilton)
SCOTUS Limits State Liability Under the FMLA for Self-Care
In a case illustrating how a minority position can shift into a majority holding, the Supreme Court of the United States held in Coleman v. Court of Appeals of Maryland, — U.S. — (March 20, 2012), that sovereign immunity bars lawsuits against States under self-care provision of the Family Medical and Leave Act (FMLA) The FMLA requires certain large employers, including States, to grant unpaid leave for self care for a serious medical condition, provided other requirements are also satisfied.
Coleman was an employee of the Maryland Court of Appeals and sued the State of Maryland under the FMLA for denying him self-care leave. The trial court dismissed Coleman’s claim, and the United States Court of Appeals for the Fourth Circuit affirmed, holding that, unlike the FMLA’s family-care provision, the self-care provision was not created to correct an identified pattern of gender-based discrimination and was not congruent and proportional to any pattern of sex-based discrimination on the part of States.
In 2003, a three justice minority would have held States immune under the family-care provision. Then, in Nevada Dept. of Human Resources v. Hibbs, 538 U. S. 721 (2003), the Court held in a 6-3 decision that mandated leave for the care of family members is a valid exercise of congressional power aimed at eradicating sex discrimination. The law, the former Chief Justice wrote, was appropriately directed to ensuring employers did not discriminate against women because of the erroneous perception that women take more time off work to care for children and other sick family members. “The same cannot be said for requiring the States to giveall employees the opportunity to take self-care leave,” Justice Kennedy wrote in Coleman.
All three female justices dissented, as did Justice Stephen Breyer. Of note, the lead dissenting justice, Justice Ruth Bader Ginsburg, was once fired after she became pregnant.
The Beat (for Alternative Attorney’s Fees) Goes On
I have posted before about the trend toward alternative fee structures used by law firms, whether by choice or by necessity. This article in the Journal of the American Bar Association quotes lawyers from some of America’s larger firms and highlights some of the incentives and terms of alternative fee arrangements those firms have with large, institutional clients.
Although the article focuses on large firms and large clients, its message pertains to ordinary people and small businesses, too. Few people and businesses have money to burn, and it’s probably safe to assume everyone would prefer to spend their money on something enjoyable rather than on a visit to the dentist … or their lawyer. Don’t get me wrong, lawyers provide a valuable service. I’ve seen my fair share of clients who wound up in a pickle because they cheaped out on the front end. Good lawyers deserve to be paid for their intellect and talent. That said, clients who do not explore alternative attorney’s fee arrangements and opt, instead, to pay for inefficiency do themselves a disservice.
Good lawyers can and will find an alternative to the billable hour that provides value and financial predictability to the client and a good living for the lawyer. Just ask … or insist.
Breach of Fiduciary Duty Claims and the Economic Loss Rule
My article titled Ruminations on the Relationship Between the Economic Loss Rule and Claims for Breach of Fiduciary Duty is the cover article for the March 2012 issue of The Florida Bar Journal. The article can be found online HERE. Although the topic is admittedly esoteric, the legal issue is one of great practical significance to persons whose financial interests are subject to the control of another person in a position of trust. Florida law concerning the economic loss rule a/k/a the economic loss doctrine is unique and, as discussed in the article, not fully settled.
Narrow Victory for California Marriage Equality Proponents
By now most everyone has heard about the “gay marriage” victory out West. In a 2-1 decision, the United States Court of Appeals for the Ninth Circuit ruled that a California voter initiative [Proposition 8] stripping same sex couples of the right to marry is unconstitutional. What many may not realize is the limited effect the ruling will have outside of California – at least for now. The court made clear its decision is California specific:
Whether under the Constitution same-sex couples may ever be denied the right to marry, a right that has long been enjoyed by opposite-sex couples, is an important and highly controversial question. It is currently a matter of great debate in our nation, and an issue over which people of good will may disagree, sometimes strongly. Of course, when questions of constitutional law are necessary to the resolution of a case, courts may not and should not abstain from deciding them simply because they are controversial. We need not and do not answer the broader question in this case, however, because California had already extended to committed same-sex couples both the incidents of marriage and the official designation of “marriage,” and Proposition 8′s only effect was to take away that important and legally significant designation, while leaving in place all of its incidents. This unique and strictly limited effect of Proposition 8 allows us to address the amendment’s constitutionality on narrow grounds.
. . .
Plaintiffs and Plaintiff-Intervenor San Francisco also offer a third argument: Proposition 8 singles out same-sex couples for unequal treatment by taking away from them alone the right to marry, and this action amounts to a distinct constitutional violation because the Equal Protection Clause protects minority groups from being targeted for the deprivation of an existing right without a legitimate reason. Romer, 517 U.S. at 634-35. Because this third argument applies to the specific history of same-sex marriage in California, it is the narrowest ground for adjudicating the constitutional questions before us, while the first two theories, if correct, would apply on a broader basis. Because courts generally decide constitutional questions on the narrowest ground available, we consider the third argument first.
In short, the outcome turned on the fact California recognized the validity of same-sex marriages before Proposition 8 was passed.
Unless and until the Supreme Court of the United States hears and affirms the Ninth Circuit’s ruling, it will have no effect beyond the territorial limits of the Ninth Circuit. Some legislators in New Hampshire may be happy about that in view of current efforts there to repeal a 2009 New Hampshire law legalizing same sex marriages. Some commentators speculate the Ninth Circuit’s opinion was written for an audience of one: Supreme Court Justice Anthony Kennedy, author of the 1996 decision on which the Proposition 8 ruling is based, Romer v. Evans, 517 U.S. 620 (1996).
I predict, as I have for several years, that states currently banning same-sex marriage will change course when they are required to recognize the validity of same-sex marriages performed in other states, via Article IV, Section 1 of the United States Constitution, also known as the Full Faith and Credit Clause.
New Trial Granted Because of Trial Counsel’s Bad Behavior
Folks who think the most aggressive lawyers are the best or most effective lawyers should read the Fifth District Court of Appeal’s February 3, 2012, opinion in Irizarry v. Moore, No. 5D09-3207 (Fla. 5th DCA Feb. 3, 2012). The court began:
This is a troubling case. In the final analysis we conclude that trial counsel for the appellees, [name omitted], stepped over the behavioral bounds so frequently during the three-day trial of this case that a reversal is required. That is to say that while each individual defalcation of [name omitted] might not justify reversal, their totality surpasses the critical mass that compels us to order a new trial.
Then, after describing some of the behavior and quoting from the trial transcripts, the Fifth District announced its conclusion:
As noted, this list is not intended to be exhaustive. Rather, it is intended to provide a glimpse into the conduct of the trial by Mr. [name omitted]. Frankly, at the end of the day, because of Mr. [name omitted] egregious behavior, we have no confidence that the parties received a fair trial of the issues. [Citations omitted.] Although the appellant moved for a new trial based on the pervasive effect of
opposing counsel’s conduct, the motion was denied by the trial court. We conclude that the trial judge abused her discretion in doing so.
In concluding, the court cited other cases reflecting trial counsel’s inappropriate conduct and hinted in a footnote that sanctions would have been appropriate had Mr. Irizarry’s attorney requested them.
Civil Rights Plaintiffs Beware
This article, by well-known constitutional law scholar, law school dean, and appellate attorney Erwin Chemerinsky, appears in the Journal of the American Bar Association and discusses two cases decided by the Supreme Court of the United States in January 2012. Both decisions are notable for the number of justices approving the outcomes. One was unanimous, and the other was an 8-1 decision in which Justice Ginsburg was the sole dissenter.
According to the article:
In Minneci v. Pollard, the U.S. Supreme Court held Jan. 10 that prison guards at private prisons contracting with the federal government cannot be sued for constitutional violations where state tort law provides a remedy.
. . .
In Ryburn v. Huff, decided Jan. 23, the court held that police officers were protected by qualified immunity when they entered a home without a warrant and without the permission of the occupants.
. . .
In Ryburn v. Huff, decided Jan. 23, the court held that police officers were protected by qualified immunity when they entered a home without a warrant and without the permission of the occupants.
Chemerinsky concludes: “Perhaps the most important theme of the Roberts Court so far has been in making it harder for plaintiffs to go forward in federal court. From a practical perspective, its most significant ruling may be Ashcroft v. Iqbal, the 2009 ruling that increased the pleading burden on those wishing to sue in federal court. The two decisions from January fit this pattern and will create new obstacles for civil rights plaintiffs.”
Big Week for Attorney’s Fees Analysis
The week started with a major seminar on the topic of Attorney’s Fees sponsored by the Appellate Practice and Business Law Committees of the Orange County Bar Association. Former Orange County Circuit Court Judge Jim Hauser, a recognized expert on the subject, was the main speaker. The seminar was well-attended and covered developments in Florida law since 2009. Suffice it to say there have been many, and the case law interpreting a party’s right to recover attorney’s fees have not always been predictable.
The same day as the seminar, the First District Court of Appeal decided Waddington v. Baptist Medical Center of the Beaches, Inc., Case No. (Fla. 1st DCA Jan. 30, 2012). There, and on its on own initiative, the court assessed attorney’s fees against the attorney’s who filed the appeal “for filing a frivolous appeal counsel knew or should have known would not be supported by existing law, as proscribed by section 57.105(1)(b), Florida Statutes (2010).” Quoting an earlier decision by the Third District Court of Appeal, the First District said, “a ‘frivolous’ appeal is one which raises arguments a reasonable lawyer would either know are not well grounded in fact, or would know are not warranted either by existing law or by a reasonable argument for the extension, modification, or reversal of existing law.”
The client of the lawyer sanctioned was not also sanctioned, but the Waddington opinion suggests that was only because of the provision under which the sanctions were awarded. In some circumstances, both client and lawyer may be sanctioned, which poses the very real threat of the lawyer being hit a second time with a malpractice claim.
Then, today, in Southeast Floating Docks, Inc. v. Auto-Owners Insurance Company, No. SC11-285 (Fla. Feb. 2, 2012), a 6-1 majority of the Florida Supreme Court held section 768.79, Florida Statutes – the offer of judgment / demand for judgment / proposal for settlement statute – is substantive for both constitutional and conflict of law purposes. Accordingly, the court held the parties’ contractual agreement to be bound by the substantive law of Michigan precluded an award of attorney’s fees under a Florida statute. To reach that outcome, the majority disapproved decisions by the Fourth and Fifth District Courts of Appeal in BDO Seidman, LLP v. British Car Auctions, Inc., 802 So. 2d 366, 368 (Fla. 4th DCA 2001) and Bennett v. Morales, 845 So. 2d 1002 (Fla. 5th DCA 2003).
Justice Perry was the court’s lone dissenter – and lone defender of the Fourth and Fifth District opinions. He said, “I cannot ignore the plain language of the statute. Based on this unambiguous language, it could not be more clear that the Legislature intends for this statute to apply to every civil action filed in the courts of this state. In light of the plain language of the statute, along with this Court’s precedent that the court’s discretion to deny attorney’s fees under this statute is limited, I do not see how the Legislature could mean anything but that this statute applies to all cases filed in Florida.”
The take away from this week is simply this: Don’t assume anything when it comes to awards of attorney’s fees in Florida.
GOP Members of Congress Seek to Make Prison Terms Mandatory
Seven years after the U.S. Supreme Court held federal sentencing guidelines are only advisory and not mandatory, some in Congress are pushing to make sentencing uniform through mandatory prison terms. This piece from NPR.org provides an interesting discussion of the issue and highlights the disparity among sentences under the current system.
Massachusetts Supreme Judicial Court Holds Children Have Right to Counsel in Some Parental Termination Cases
In Adoption of Meaghan, SJC-10915 (Mass. Jan. 30, 2012), the Massachusetts Supreme Judicial Court determined that children have a right to counsel in private, contested adoption proceedings. “The decision whether or not to terminate is of enormous consequence to the child. The child cannot have a meaningful opportunity to be heard in a contested proceeding without the assistance of counsel, regardless whether the case is initiated by the department or other agency or by a private party.” Those interested in the opinion can link to it through THIS website.
Stakeholders in Florida have debated for years which model of legal representation best serves the rights and interests of children and youth. This Massachusetts decision will likely cause reverberations statewide for several years to come.
