Tom Appeals Blog

News and Observations About Law and Society

"As long as I have any choice, I will stay only in a country where political liberty, toleration, and equality of all citizens before the law are the rule." - Albert Einstein

Narrow Victory for California Marriage Equality Proponents

Posted: February 7, 2012 Filed under: Case Law, Commentary, Law-Related News

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

Posted: February 4, 2012 Filed under: Case Law, Commentary

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

Posted: February 3, 2012 Filed under: Case Law, Commentary, Law-Related News

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.

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

Posted: February 2, 2012 Filed under: Case Law, Commentary, Law-Related News

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.

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