Thomas Wade Young - Trials & Appeals

Today, the Supreme Court of Florida released the long-anticipated decision on The Florida Bar’s proposed advertising rules. If you have not read the court’s opinion, you should. You’ll find it HERE. Justices Pariente and Canady dissented separately; they feel the new rules go to far. In a substantial departure from the prior rules, lawyer websites and information provided upon request are now subject to the advertising rules. They are, at least, exempt from the filing and review requirements.

Agree or not, the fact of the matter is that the rules have been adopted. Noncompliance carries the risk of a grievance and disciplinary proceedings.

Today, the Supreme Court of Florida overturned a trial court order that had declared a 2011 law overhauling the Florida Retirement System (FRS) unconstitutional. By a margin of 4 to 3, the supreme court ruled that the Florida Legislature had the constitutional authority to pass Chapter 2011-68, Laws of Florida, which “converted the FRS from noncontributory by employees to contributory, required all current FRS members to contribute 3% of their salaries to the retirement system, and eliminated the retirement cost-of-living adjustment for creditable service after the effective date of the act.” According to a footnote, the changes affect “55 state agencies; 396 county agencies; 67 school boards; 28 community colleges; 185 cities, 6 independent hospitals, 243 special districts (these last three categories include the 26 cities, 5 independent hospitals, and 12 independent districts that are closed to new members as of January 1, 1996); and 12 other public employers not specifically designated.”

The changes, which one of the majority justices described as “a 3% pay-cut in addition to years without cost-of-living adjustments,” were described more dimly by a dissenting justice as “an insufferable and unconstitutional ‘bait and switch’ at the expense of public employees who were members of the [FRS] prior to July 1, 2011.”

Decide for yourself which side has the better descriptor by reading the opinion in Scott v. Williams HERE.

In a 5-4 vote, with usually conservative-leaning Chief Justice Roberts casting the deciding vote, the Supreme Court of the United States has affirmed the constitutionality of the Patient Protection and Affordable Care Act, which is derisively or affectionately, depending on one’s perspective, known “Obamacare.” The opinion is HERE. The controversial individual mandate was upheld on the basis government’s third argument – that the mandate is a tax. As the Court notes in footnote 11 on page 44:

The court did, however, restrict the federal government’s power to withhold existing Medicaid funding from states that fail to accept additional federal funds to expand the availability of health care. Seven members of the court agreed in that regard.

The four dissenting justices would have declared the entire Act unconstitutional.

Chief Justice Roberts provides an invaluable lesson regarding separation of powers and the role of courts on page two of the majority opinion. Thalia Burks, my high school civics teacher, lectured the same lesson many, many times.

Yesterday, in Gowski v. Peake, No. 09-16371 (11th Cir. June 4, 2012), the United States Court of Appeals for the Eleventh Circuit became the last of the Circuit Courts of Appeal to recognize claims for retaliatory hostile work environment. Doing so, wrote the unanimous three judge panel, is consistent with interpretation of the prohibition against discrimination in other contexts and “is consistent with Title VII’s remedial goal and prevents supervisors from deterring protected conduct.”

The court applied familiar rules applicable to hostile work environment claims. “Thus, to be actionable, this behavior must result in both an environment that a reasonable person would find hostile or abusive and an environment that the victim subjectively perceive[s] . . . to be abusive.” In determining whether a reasonable person could find an environment hostile, courts in the 11th Circuit look at the “totality of the circumstances,” including “(1) the frequency of the conduct; (2) the severity of the conduct; (3) whether the conduct is physically threatening or humiliating, or a mere offensive utterance; and (4) whether the conduct unreasonably interferes with the employee’s job performance.”

The court further clarified that, although separate and discrete acts of retaliation do not establish a hostile work environment claim, “the jury could consider discrete acts as part of a hostile work environment claim.” The justification for this conclusion is that a hostile work environment is, by definition, a series of separate acts that, when viewed together, constitute a single unlawful employment practice.

The full 30 page opinion addresses additional issues as well. Among them: application of the “same decision” defense to the “but-for” standard of causation in a retaliatory hostile work environment claim and whether injunctive relief is available in a mixed motive retaliation case.

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:

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.

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:

Then, after describing some of the behavior and quoting from the trial transcripts, the Fifth District announced its conclusion:

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.

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:

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.”

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.

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.

Today, in the case of United States v. Jones, — U.S. —, No. 10-1259 (Jan. 23, 2012), the Supreme Court of the United States unanimously decided that the attachment of a GPS device to a vehicle, and the use of the GPS device to monitor the vehicle’s movements, constitute a search under the Fourth Amendment of the United States Constitution. Thus, a search warrant was required, and the Court affirmed the U.S. Court of Appeals for the District of Columbia Circuit, which had ruled admission of the evidence obtained by warrantless use of the GPS device violated the Fourth Amendment. The Court refused to consider an alternative argument—”that if the attachment and use of the device was a search, it was a reasonable one—” because it was not raised in the lower courts.

The facts in Jones revealed that the government obtained a search warrant permitting it to install a GPS device, but the warrant authorized installation only in the District of Columbia and within 10 days. Government agents instead installed the device on the 11th day and in Maryland.