OPM has a duty to take care that the laws be faithfully executed, but it may not disregard a coordinate branch’s construction of the laws that apply to its employees. No less than the other branches of government, the Judiciary is dependent on people to carry out its mission. Barring us from determining, within reasonable bounds, the rights and duties of our personnel under the laws providing for their employment would make us a “handmaiden of the Executive.” United States v. Smith, 899 F.2d 564, 569 (6th Cir. 1990). The power both to interpret and execute a law is the power to control those governed by it. Cf. The Federalist No. 47 (James Madison).
Concern about such a fate is particularly acute for the Judicial Branch. We rely on Congress to fund and the Executive to carry out many aspects of our day to day operations. GSA manages the buildings where we work, Treasury cuts our checks, U.S. Marshals provide our security and OPM administers our employee benefits programs. But if the theory of separate powers means anything, it’s that the Executive cannot use its dominance over logistics to destroy our autonomy...
(emphasis added). Thanks to How Appealing for the link.That those rights are not in question here is irrelevant. The power the Executive has arrogated to itself in this case would be enough to sustain those actions as well. Nor is it any answer that OPM could set out a plausible interpretation of the law to support its actions in this case. Some branch must have the final say on a law’s meaning. At least as to laws governing judicial employees, that is entirely our duty and our province. We would not be a co-equal branch of government otherwise.
Snyder was solicited by RRA, and individuals associated with RRA, to invest Two Million One Hundred Sixty Thousand and 00/100 Dollars ($2,160,000.00) in a future, and yet to be finalized, transaction....As evidenced by a confirming letter from RRA, a copy of which is attached hereto as Exhibit B, the Snyder Trust Funds were intended by Snyder to be kept separate from RRA’s property, Rothstein’s property, and the property of other clients or third-parties.You can read the entire complaint below, including the exhibit referenced in the quote.
The issue now before this court is not whether Eldridge is, or is not, mentally ill or whether he is, or is not, competent to be executed in compliance with the Constitution. The only issue now before this court is whether, based on the record presented, the prisoner has made a 'substantial threshold showing of insanity.' Id. If such a showing is made, the execution must be delayed to permit a “fair hearing” to determine competency to be executed. A fair hearing requires an opportunity to submit evidence and arguments from the prisoner’s counsel, including expert psychiatric evidence to respond to the State’s own psychiatric examination. Id. at 952. The record before this court shows that Eldridge has made that substantial threshold showing. Under the case law, this court must therefore stay his execution to determine whether his condition allows his execution.The caselaw the court was citing to is Ford v. Wainwright, 477 U.S. 399 (1986) and Panetti v. Quarterman, 551 U.S. 930, 948 (2007). You can see articles here, here, here, and here. You can view Judge Rosenthal's ten page stay order below:
The issue that warrants discussion in this case is whether section 627.736(7)(a), Florida Statutes, requires an insurer to obtain an IME before denying a PIP claim or whether a “valid report” under the statute may be based on an expert’s review of the claimant’s treatment records, a so-called “peer review report.” Circuit and county court judges have interpreted the “valid report” requirement of the PIP statute differently. We conclude, in line with the Third District Court of Appeal, that the “valid report” required by the statute does not require an insurer to order an IME before denying a claim for PIP benefits. See United Auto. Ins. Co. v. Metro Injury & Rehab Ctr., 16 So. 3d 897 (Fla. 3d DCA 2009); United Auto. Ins. Co. v. Bermudez, 980 So. 2d 1213 (Fla. 3d DCA 2008), receded from on other grounds by United Auto. Ins. Co. v. Santa Fe Med. Ctr., 34 Fla. L. Weekly S2051 (Fla. 3d DCA Oct. 7, 2009) (en banc).United Auto. Ins. Co. v. Santa Fe Med. Ctr., 34 Fla. L. Weekly S2051 (Fla. 3d DCA Oct. 7, 2009) (en banc) was previously discussed here.
The plaintiff filed a complaint against the defendant doctor and her professional association for damages arising from a laser hair removal procedure. The plaintiff alleged that the doctor’s negligence in performing the procedure caused severe burns. The complaint specifically alleged that the doctor was not performing medical treatment, but rather cosmetic electrolysis as defined by section 478.42(5), Florida Statutes (2008).
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The well-accepted general rule is that the allegations of a complaint must be accepted as true for purposes of a motion to dismiss. Gowan v. Bay County, 744 So. 2d 1136, 1138 (Fla. 1st DCA 1999). However, when the factual allegations belie the conclusory legal allegations, the trial court is permitted to, indeed must, apply the law to the well-pleaded factual allegations and decide the legal issue of whether the complaint sounds in simple or medical negligence. Brandon v. Pinellas County, 141 So. 2d 278, 279 (Fla. 2d DCA 1962) (“Mere statements of opinions or conclusions unsupported by specific facts will not suffice.”).
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While we normally do not review orders denying motions to dismiss because there is an adequate remedy at law in the final appeal, declining to do so in this case would cause irreparable harm. The Medical Malpractice Reform Act was designed to provide cost-saving pretrial procedures as a response to the medical malpractice crisis. To allow this case to proceed to a possible judgment, only to be reversed would eliminate the very cost-saving procedures for which the Act was created. Here, “relief by direct appeal would be no relief at all.” Pearlstein, 500 So. 2d at 587. We therefore find the requisite irreparable harm.
We grant the petition, issue the writ, quash the order, and remand the case to the trial court for dismissal of the plaintiff’s complaint for failure to comply with the presuit screening process of section 766.106(2).
Appellee, Equestrian Club Estates Property Owners Association, Inc. (Association) owns a private road which the appellant, Palm Beach Polo Holdings, Inc. (Palm Beach Polo) wanted to use to access an otherwise landlocked parcel of property know as the “one hundred acre lot.”
The defendant moved for attorney’s fees based, in part, on three proposals for settlement dated December 4, 2001, February 1, 2002 and April 30, 2004. Each proposal for settlement was pursuant to Rule 1.442, Florida Rules of Civil Procedure and Section 768.79, Florida Statutes (2008), and offered to pay $1,001.00 as complete and final resolution and settlement of all claims. The Association’s April 30, 2004 proposal offered the payment “as a complete and final resolution and settlement of all claims asserted by [Palm Beach Polo] against [Association] in this action.” The February 1, 2002 proposal for settlement used similar language. It stated “the proposal for settlement is for all claims brought against defendant, Equestrian Club Estates Property Owners Association, Inc., a Florida corporation, by the plaintiff, Palm Beach Polo Holdings, Inc., arising out of the litigation in this lawsuit.”
The offer of judgment statute applies only to civil actions “for damages.” § 768.79. In this case, the action brought by Palm Beach Polo involved three essential Counts, two seeking declaratory judgment and only one seeking damages. One of the declaratory counts sought a way of necessity to obtain access to the “one hundred acre lot.” As pointed out by the trial judge, this claim served as a predicate for the tortious interference action, but it also had significant value independent of any monetary recovery for tortious interference.
In the instant case, the complaint contained two independent, significant claims, such that it could be characterized only as an action for both damages and non-monetary, declaratory relief. In order to determine whether the trial court erred in finding that the defendant is entitled to attorney’s fees pursuant to the offer of settlement, it must be determined whether a general offer applying to an entire case that includes both claims for damages and other claims can be binding upon the unsuccessful party. This issue has not yet been addressed by this court.
Here, the proposals for settlement did not state whether the association was agreeing to entry of any injunctions, or declaration of Palm Beach Polo’s grant of way of necessity, yet it claimed to be a proposal to settle all claims. If the statute were read to permit a proposal for settlement to apply to a case in which there were claims for noneconomic relief as well as for damages, the offeree would be forced either to accept the proposal and continue to litigate the request for injunctive and non-economic relief or to give up their non-damage claims. The purposes of section 768.79 include the early termination of litigation. A proposal for settlement in a case such as this one does not satisfy that purpose, as its acceptance would not terminate the litigation nor resolve those claims not seeking damages. Because the proposals for settlement addressed a complaint that included non-damages claims, they do not comply with the statute, and we find them invalid and reverse the trial court’s order awarding fees.
"The Florida Bar and Scott W. Rothstein have agreed to his permanent disbarment – subject to the approval of the Supreme Court of Florida – in lieu of Rothstein defending himself against allegations of disciplinary violations. Rothstein was under investigation for violations of The Rules Regulating The Florida Bar, including misappropriation of funds from trust accounts.
"The Florida Bar has been monitoring the federal investigation of Mr. Rothstein and we have been in contact with the court-appointed receiver for the firm as well as the U.S. Attorney’s Office. While the case is very complex, it became evident that Bar rules may have been violated.
"This is a terribly unfortunate and tragic situation, but it is also a rare circumstance in the legal profession. The great majority of Florida attorneys serve their clients admirably and in accordance with the Bar’s rules of professional conduct. However, rule violations are not tolerated and the Bar takes appropriate actions to protect the public against further harm. The Florida Bar will continue to investigate any violations of its rules by other attorneys who may have been involved in this case.
"Additional details of the disbarment on consent will be available when the document has been received by the Supreme Court."
His request for relief comes two weeks after U.S. District Judge Kenneth Ryskamp said he believes the honest services fraud statute that sent Masilotti to prison is unconstitutional.
While declining to spring Masilotti before his five-year prison sentence is up on Christmas Eve 2011, Ryskamp wrote that he believes the statute is unconstitutional because "it fails to advise a defendant of what conduct is prohibited" and it also violates the "basic principles of federalism."
