Friday, January 29, 2010

Southern District of Florida Amends Local Rules - Effective 4/15/2010 - Administrative Order 2010-05

On January 26, 2010, Southern District of Florida Chief Judge Federico A. Moreno entered Administrative Order 2010-05.  The order amends the Local Rules of the Southern District of Florida, effective April 15, 2010. The order with the amended rules is below:

Thursday, January 28, 2010

Florida Supreme Court's February 2010 Oral Argument Schedule

The Florida Supreme Court's February 2010 oral argument schedule can be viewed HERE.

Obama Critical Of Supreme Court Duing State Of The Union

There is a significant amount of attention being given to President Obama's criticism of the Supreme Court during last nights state of the union speech.  The President criticized the Court's recent decision in Citizens United which was discussed HERE.  As the President made the remarks, Justice Alito appeared to mouth "not true." As the New York Times discusses below, Alito may have been correct.  The text of this portion of the speech, from Yahoo News, is below:
With all due deference to separation of powers, last week the Supreme Court reversed a century of law that I believe will open the floodgates for special interests — including foreign corporations — to spend without limit in our elections. I don't think American elections should be bankrolled by America's most powerful interests, or worse, by foreign entities. They should be decided by the American people. And I'd urge Democrats and Republicans to pass a bill that helps to correct some of these problems.
A couple of interesting points and stories:

*Supreme Court reporter Jess Bravin, who writes for the Wall Street Journal, noted that the President added the line "With all due deference to separation of powers" at the podium as the text was not in the released version of the speech [HERE];

*The New York Times notes that the President was not correct abou the impact on foreign corporations.  The Times stated "But in his majority opinion in the case, Citizens United vs. the Federal Election Commission, Justice Anthony Kennedy specifically wrote that the opinion did not address the question of foreign companies."  [HERE];

*The Blog of Legal Times, giving credit to a University of California Santa Barbara database and editor David Brown, notes that the Supreme Court has been mentioned only nine times since President Wilson's state of the union in 1913 [HERE];

*Read the Volokh Conspiracy's discussion HERE;

*Politico's discussion can be viewed HERE;

*Linda Greenhouse's opinion piece in the New York Times can be viewed HERE;

*Above the Law's story can be viewed HERE;

*ABC News has an article HERE titled "Biden defends Obama's criticism of high court";

*The NPR Blog, HERE, has a post titled "If Alito Did Say 'Not True' About Obama's Claim, He May Have Had A Point."

Wednesday, January 27, 2010

Order Compelling Arbitration Over Mold Claim Against Builder Affirmed

In Rodriguez v. Builders Firstsource-Florida, LLC (4D09-1716), the Fourth District affirmed Palm Beach County Circuit Court Judge Edward A. Garrison's order compelling arbitration.  The court stated:
The appellants assert that their personal injury claims for mold exposure are based on duties of care imposed by common law—and not on the purchase agreement containing the arbitration clause—and therefore are not arbitrable.....The appellants allege that the damages were caused by the negligent design and construction of the home by GL Associates, GL Corp., and GL Florida, and the window contractor, Builders. In fourteen counts, the appellants claimed property damages as well as substantial adverse health consequences caused by th e mold infestation.
“Whether a particular issue is subject to arbitration is generally considered a matter of contract interpretation, and, therefore, the standard of review is de novo.” Hirshenson v. Spaccio, 800 So. 2d 670, 674 (Fla. 5th DCA 2001).
“[T]here are three elements for courts to consider in ruling on a motion to compel arbitration of a given dispute: (1) whether a valid written agreement to arbitrate exists; (2) whether an arbitrable issue exists; and (3) whether the right to arbitration was waived.” Seifert v. U.S. Home Corp., 750 So. 2d 633, 636 (Fla. 1999). Appellants dispute the second element. “[T]he determination of whether a particular claim must be submitted to arbitration necessarily depends on the existence of some nexus between the dispute and the contract containing the arbitration clause.” Id. at 638.
Our decision in Engle Homes, Inc. v. Jones, 870 So. 2d 908, 909 (Fla. 4th DCA 2004) controls this issue. In Engle, the plaintiffs sued their builders for damages arising from mold infestation of their home due to alleged negligent design and construction of the home. Based on the purchase agreement, the builders moved to compel arbitration and stay litigation. An arbitration clause in the purchase agreement provided, in part, that “[a]ny and all unsettled claims or disputes regarding the construction of Residence arising after closing shall be settled by binding arbitration.” Id. at 909 (emphasis added in original).
The language of the Purchase Contract clearly and unambiguously requires submission to binding arbitration for the claims stated in the amended complaint. “A court is not empowered to rewrite a clear and unambiguous provision, nor should it attempt to make an otherwise valid contract more reasonable for one of the parties.” N. Am. Van Lines v. Collyer, 616 So. 2d 177, 179 (Fla. 5th DCA 1993); see also Barakat v. Broward County Hous. Auth., 771 So. 2d 1193, 1195 (Fla. 4th DCA 2000) (“It is never the role of a trial court to rewrite a contract to make it more reasonable for one of the parties or to relieve a party from what turns out to be a bad bargain.”). “The general rule is that competent parties shall have the utmost liberty of contracting and their agreements voluntarily and fairly made will be upheld and sustained by the courts. . . . The fact that one of the parties to a contract made a hard bargain will not alone avoid a contract.” Pierce v. Isaac, 184 So. 509, 513 (Fla. 1938).

Tuesday, January 26, 2010

Late Filing Of Claim, Failure to Comply With EUO & Policy Requirements, RCV Coverage And More

In the decision below, originally posted by Dennis Wall at the Insurance Claims Issues Blog, which can be viewed at THIS link, the post notes "a Federal Judge in Florida held that a "Late Notice" Defense presented questions of Fact to be resolved by a Jury"...the "alleged failure to comply with Policy Conditions respecting Examinations Under Oath ("EUOs") was likewise held to present a question of Fact"...."However, Aspen Specialty was granted Summary Judgment on its contention that the Policyholder in this case, a Homeowners Association, did not comply with "the clear language of the policy provisions" which would have entitled it to Replacement Cost Coverage ("RCV")."

A second interesting decision from the same source is below and the Insurance Claims Issues Blog noted: "a Federal Judge held that the collateral source rule does not preclude evidence regarding an Other Insurance Policy, issued by one USPlate Glass Insurance."  The opinion also addresses other issues.
King Cole v. QBE

Monday, January 25, 2010

Supreme Court Declines To Review Eleventh Circuit's Decision On Manuel Noriega Extradition

The Supreme Court issued an order today denying the petition for certioari filed by General Manuel Noriega, the former head ofthe Panamanian Defense Forces.  Justice Thomas wrote a dissent and was joined by Justice Scalia.  The dissent can be found HERE and stated:
“[I]n our tripartite system of government,” it is the dutyof this Court to “say ‘what the law is.’ ” Boumediene v. Bush, 553 U. S. ___ (2008) (slip op., at 36) (quoting Marbury v. Madison, 1 Cranch 137, 177 (1803)). This duty isparticularly compelling in cases that present an opportu-nity to decide the constitutionality or enforceability of federal statutes in a manner “insulated from the pressures of the moment,” and in time to guide courts and the political branches in resolving difficult questions concerning the proper “exercise of governmental power.” Hamdan v. Rumsfeld, 548 U. S. 557, 637 (2006) (KENNEDY, J., concurring in part); see generally Sanchez-Llamas v. Oregon, 548 U. S. 331, 353–354 (2006); Hamdan, supra, at 588 (quot-ing Ex parte Quirin, 317 U. S. 1, 19 (1942)). This is such a case.
The Eleventh Circuit's decision was previously discussed HERE.  Articles about the Supreme Court's decision can be found at the following links: BBC NewsMSNBC, and

Order Denying Attempt To Set Aside Settlement Agreement Affirmed

In Rachid v. Perez (3D08-1210), the Third District affirmed the trial court's "order denying her motion for rehearing and her motion to set aside the order granting the motion to enforce the mediated settlement agreement."  The court stated:
Rachid seeks rescission of the settlement agreement based upon unilateral mistake. Because her appeal is directed to the order denying her motion for rehearing and a denial of her motion to set aside the order granting the motion to enforce the mediated settlement, the standard of review is gross abuse of discretion.  LPP Mortgage Ltd. v. Bank of Am., N.A., 826 So. 2d 462, 463-64 (Fla. 3d DCA 2002) (holding that “whether relief should be granted . . . is a fact specific question and the trial court’s ruling should not be disturbed on appeal absent a gross abuse of discretion”). We additionally note that “[t]here is a more stringent standard of review, however, when the final judgment to be vacated follows a mediated settlement agreement.” Tilden Groves Holding Corp. v. Orlando/Orange County Expressway, 816 So. 2d 658, 660 (Fla. 5th DCA 2002).
With regard to the specific issue in the appeal:
Even if Rachid had preserved the issue of unilateral mistake, we would affirm. First, Rachid’s burden when seeking rescission of a settlement agreement on this legal theory is a particularly difficult one.....Second, Rachid’s argument is without merit as the record does not support the legal remedy of rescission on the basis that the settlement agreement was the product of a unilateral mistake. Under Florida law, the party seeking rescission based on unilateral mistake must establish that:
(1) the mistake was induced by the party seeking to benefit from the mistake, (2) there is no negligence or want of due care on the part of the party seeking a return to the status quo, (3) denial of release from the agreement would be inequitable, and (4) the position of the opposing party has not so changed that granting the relief would be unjust.
Here, Rachid does not claim that any party misled or induced her to enter into the settlement agreement. Rather, she contends that her attorney misled or induced her. Thus, her claim fails as a matter of law.

Certiorari Cannot Be Used To Circumvent The Deadlines In The Rules Of Appellate Procedure

In Parks v. Citizens Property Insurance Corporation (3D09-2590), the Third District dismissed a petition for certiorari seeking review of an "order in which the trial court denied Parks’ motion to set aside an order that granted the umpire’s Motion to Protect Special Master/Umpire’s Fee and Creation of Lien on October 6, 2008."  The court stated:
We note that certiorari review indeed lies to review final orders such as the order now before us, as provided for in rule 9.030(b)(2)(B), Florida Rules of Appellate Procedure. Certiorari review, however, cannot be used to circumvent the Florida Rules of Appellate Procedure that mandate compliance with the time period limitations imposed for the filing of notices of appeal. See Fla. R. App. P. 9.110(b).

Sunday, January 24, 2010

Motion To Stay Entry Of Mandate Denied

Update: On June 9, 2011, the Florida Supreme Court reversed the underlying opinion in this case. The Florida Supreme Court's opinion can be viewed HERE.

In Banco Industrial de Venezuela, C.A. v. de Saad (3D08-1713), the Third District entered a published order denying Banco Industrial's motion to stay the entry of a mandate pending the Florida Supreme Court's decision as to whether to accept jurisdicion of the case or not.  The court stated:
The Committee Notes to Rule 9.120 state the following concerning motions to stay mandate:
The advisory committee was of the view that the District Courts should permit such stays only when essential. Factors to be considered are the likelihood that jurisdiction will be accepted by the Supreme Court, the likelihood of ultimate success on the merits, the likelihood of harm if no stay is granted, and the remediable quality of any such harm.
The court denied the motion to stay the mandate and stated:
After a review of this Court’s decision, and the motion and response in this matter, it appears to this Court that Banco Industrial’s and BIV’s motion fails on the first two factors, the likelihood that the Supreme Court will accept jurisdiction and the likelihood of ultimate success on the merits.
The decision they were attempting to stay was released on September 16, 2009 and can be viewed HERE.

Summary Judgment Not Appropriate When Homestead Status Is Factual Issue

In Barton v. Oculina Bank (4D07-4707), the Fourth District reversed a summary judgment and decided that "a summary judgment is precluded where there is a disputed question of material fact on whether the property in question is the appellant’s homestead."  Interestingly, the appellant did not raise the homestead issue in the trial court and raised it for the first time in the briefs on appeal.  The court held:
Whether a property is a homestead is an issue of fact. Hillsborough Inv. Co. v. Wilcox, 13 So. 2d 448, 452 (Fla. 1943). The appellant has asserted that the property was his homestead in 2004. It is undisputed that he owned and lived in the residence at the time the mortgage was assigned to the appellee in 2004. Later that year, the home on the property was destroyed by a hurricane, and at the time he gave his deposition, the appellant was in the process of getting permits to build a new home on the lot.
As a result, the claim that the property is the appellant’s homestead raises disputed issues of material fact that make summary judgment improper. Fla. R. Civ. P. 1.510(c).

Thursday, January 21, 2010

Supreme Court Opinion In Citizens United - Austin Overruled, Eases Campaign Finance Rules, Upholds Disclosure Requirements

The United States Supreme Court released a 183 page opinion today in Citizens United v. Federal Election Commission (08-205).  The case was previously discussed on this blog HERE and HERE.  The SCOTUS Blog's post "Campaign disclosure rules upheld" can be viewed HERE.  Fox News has an article "Supreme Court Removes Limits on Corporate, Labor Donations to Campaigns" which can be viewed HERE.  The Atlantic has an article "Citizens United Decision: Bring On The Spending" which can be viewed HERE.  ABC News has an article "Supreme Court Overturns Campaign Spending Limits on Corporations, Unions" which can be viewed HERE.  Also: CNNPolitico; NewsHour; the Washington Post; and many more on Google News.    

The Court's syllabus is copied below and the entire opinion is below that:


1. Because the question whether §441b applies to Hillary cannot be resolved on other, narrower grounds without chilling political speech, this Court must consider the continuing effect of the speech suppres-sion upheld in Austin. Pp. 5–20.

(a) Citizen United’s narrower arguments—that Hillary is not an “electioneering communication” covered by §441b because it is not“publicly distributed” under 11 CFR §100.29(a)(2); that §441b maynot be applied to Hillary under Federal Election Comm’n v. Wisconsin Right to Life, Inc., 551 U. S. 449 (WRTL), which found §441b uncon-stitutional as applied to speech that was not “express advocacy or its functional equivalent,” id., at 481 (opinion of ROBERTS, C. J.), deter-mining that a communication “is the functional equivalent of express advocacy only if [it] is susceptible of no reasonable interpretationother than as an appeal to vote for or against a specific candidate,” id., at 469–470; that §441b should be invalidated as applied to movies shown through video-on-demand because this delivery system has alower risk of distorting the political process than do television ads;and that there should be an exception to §441b’s ban for nonprofitcorporate political speech funded overwhelming by individuals—arenot sustainable under a fair reading of the statute. Pp. 5–12.

(b) Thus, this case cannot be resolved on a narrower ground without chilling political speech, speech that is central to the First Amendment’s meaning and purpose. Citizens United did not waive this challenge to Austin when it stipulated to dismissing the facial challenge below, since (1) even if such a challenge could be waived, this Court may reconsider Austin and §441b’s facial validity here be-cause the District Court “passed upon” the issue, Lebron v. National Railroad Passenger Corporation, 513 U. S. 374, 379; (2) throughoutthe litigation, Citizens United has asserted a claim that the FEC hasviolated its right to free speech; and (3) the parties cannot enter intoa stipulation that prevents the Court from considering remedies nec-essary to resolve a claim that has been preserved. Because Citizen United’s narrower arguments are not sustainable, this Court must, in an exercise of its judicial responsibility, consider §441b’s facial valid-ity. Any other course would prolong the substantial, nationwide chilling effect caused by §441b’s corporate expenditure ban. This conclusion is further supported by the following: (1) the uncertaintycaused by the Government’s litigating position; (2) substantial timewould be required to clarify §441b’s application on the points raisedby the Government’s position in order to avoid any chilling effect caused by an improper interpretation; and (3) because speech itself is of primary importance to the integrity of the election process, anyspeech arguably within the reach of rules created for regulating po-litical speech is chilled. The regulatory scheme at issue may not be aprior restraint in the strict sense. However, given its complexity and the deference courts show to administrative determinations, a speaker wishing to avoid criminal liability threats and the heavycosts of defending against FEC enforcement must ask a governmen-tal agency for prior permission to speak. The restrictions thus func-tion as the equivalent of a prior restraint, giving the FEC poweranalogous to the type of government practices that the First Amend-ment was drawn to prohibit. The ongoing chill on speech makes itnecessary to invoke the earlier precedents that a statute that chills speech can and must be invalidated where its facial invalidity hasbeen demonstrated. Pp. 12–20.

2. Austin is overruled, and thus provides no basis for allowing the Government to limit corporate independent expenditures. Hence, §441b’s restrictions on such expenditures are invalid and cannot be applied to Hillary. Given this conclusion, the part of McConnell that upheld BCRA §203’s extension of §441b’s restrictions on independent corporate expenditures is also overruled. Pp. 20–51.

(a) Although the First Amendment provides that “Congress shallmake no law . . . abridging the freedom of speech,” §441b’s prohibitionon corporate independent expenditures is an outright ban on speech, backed by criminal sanctions. It is a ban notwithstanding the factthat a PAC created by a corporation can still speak, for a PAC is aseparate association from the corporation. Because speech is an es-sential mechanism of democracy—it is the means to hold officials ac-countable to the people—political speech must prevail against lawsthat would suppress it by design or inadvertence. Laws burdening such speech are subject to strict scrutiny, which requires the Gov-ernment to prove that the restriction “furthers a compelling interest and is narrowly tailored to achieve that interest.” WRTL, 551 U. S., at 464. This language provides a sufficient framework for protecting the interests in this case. Premised on mistrust of governmentalpower, the First Amendment stands against attempts to disfavor cer-tain subjects or viewpoints or to distinguish among different speak-ers, which may be a means to control content. The Government may also commit a constitutional wrong when by law it identifies certain preferred speakers. There is no basis for the proposition that, in thepolitical speech context, the Government may impose restrictions oncertain disfavored speakers. Both history and logic lead to this con-clusion. Pp. 20–25.

(b) The Court has recognized that the First Amendment appliesto corporations, e.g., First Nat. Bank of Boston v. Bellotti, 435 U. S. 765, 778, n. 14, and extended this protection to the context of politicalspeech, see, e.g., NAACP v. Button, 371 U. S. 415, 428–429. Address-ing challenges to the Federal Election Campaign Act of 1971, the Buckley Court upheld limits on direct contributions to candidates, 18 U.S.C. §608(b), recognizing a governmental interest in preventing quid pro quo corruption. 424 U. S., at 25–26. However, the Court in-validated §608(e)’s expenditure ban, which applied to individuals,corporations, and unions, because it “fail[ed] to serve any substantialgovernmental interest in stemming the reality or appearance of cor-ruption in the electoral process,” id., at 47–48. While Buckley did not consider a separate ban on corporate and union independent expendi-tures found in §610, had that provision been challenged in Buckley’s wake, it could not have been squared with the precedent’s reasoning and analysis. The Buckley Court did not invoke the overbreadth doc-trine to suggest that §608(e)’s expenditure ban would have been con-stitutional had it applied to corporations and unions but not indi-viduals. Notwithstanding this precedent, Congress soon recodified §610’s corporate and union expenditure ban at 2 U. S. C. §441b, the provision at issue. Less than two years after Buckley, Bellotti reaffirmed the First Amendment principle that the Government lacks thepower to restrict political speech based on the speaker’s corporate identity. 435 U.S., at 784–785. Thus the law stood until Austin up-held a corporate independent expenditure restriction, bypassing Buckley and Bellotti by recognizing a new governmental interest inpreventing “the corrosive and distorting effects of immense aggrega-tions of [corporate] wealth . . . that have little or no correlation to thepublic’s support for the corporation’s political ideas.” 494 U. S., at 660. Pp. 25–32.

(c) This Court is confronted with conflicting lines of precedent: a pre-Austin line forbidding speech restrictions based on the speaker’s corporate identity and a post-Austin line permitting them. Neither Austin’s antidistortion rationale nor the Government’s other justifica-tions support §441b’s restrictions. Pp. 32–47.

(1) The First Amendment prohibits Congress from fining or jailing citizens, or associations of citizens, for engaging in politicalspeech, but Austin’s antidistortion rationale would permit the Government to ban political speech because the speaker is an associationwith a corporate form. Political speech is “indispensable to decision-making in a democracy, and this is no less true because the speechcomes from a corporation.” Bellotti, supra, at 777 (footnote omitted). This protection is inconsistent with Austin’s rationale, which is meant to prevent corporations from obtaining “ ‘an unfair advantage in the political marketplace’ ” by using “ ‘resources amassed in the economic marketplace.’ ” 494 U. S., at 659. First Amendment protec-tions do not depend on the speaker’s “financial ability to engage in public discussion.” Buckley, supra, at 49. These conclusions were re-affirmed when the Court invalidated a BCRA provision that in-creased the cap on contributions to one candidate if the opponent made certain expenditures from personal funds. Davis v. Federal Election Comm’n, 554 U. S. ___, ___. Distinguishing wealthy indi-viduals from corporations based on the latter’s special advantages of, e.g., limited liability, does not suffice to allow laws prohibiting speech. It is irrelevant for First Amendment purposes that corporate funds may “have little or no correlation to the public’s support for the corporation’s political ideas.” Austin, supra, at 660. All speakers, including individuals and the media, use money amassed from the eco-nomic marketplace to fund their speech, and the First Amendment protects the resulting speech. Under the antidistortion rationale, Congress could also ban political speech of media corporations. Al-though currently exempt from §441b, they accumulate wealth withthe help of their corporate form, may have aggregations of wealth,and may express views “hav[ing] little or no correlation to the public’s support” for those views. Differential treatment of media corpora-tions and other corporations cannot be squared with the First Amendment, and there is no support for the view that the Amend-ment’s original meaning would permit suppressing media corpora-tions’ political speech. Austin interferes with the “open marketplace”of ideas protected by the First Amendment. New York State Bd. of Elections v. Lopez Torres, 552 U. S. 196, 208. Its censorship is vast inits reach, suppressing the speech of both for-profit and nonprofit,both small and large, corporations. Pp. 32–40.

(2) This reasoning also shows the invalidity of the Government’s other arguments. It reasons that corporate political speechcan be banned to prevent corruption or its appearance. The Buckley Court found this rationale “sufficiently important” to allow contribu-tion limits but refused to extend that reasoning to expenditure limits,424 U.S., at 25, and the Court does not do so here. While a single Bellotti footnote purported to leave the question open, 435 U. S., at788, n. 26, this Court now concludes that independent expenditures, including those made by corporations, do not give rise to corruption or the appearance of corruption. That speakers may have influence over or access to elected officials does not mean that those officials are corrupt. And the appearance of influence or access will not causethe electorate to lose faith in this democracy. Caperton v. A. T. Massey Coal Co., 556 U. S. ___, distinguished. Pp. 40–45.

(3) The Government’s asserted interest in protecting share-holders from being compelled to fund corporate speech, like the anti-distortion rationale, would allow the Government to ban political speech even of media corporations. The statute is underinclusive; it only protects a dissenting shareholder’s interests in certain media for 30 or 60 days before an election when such interests would be implicated in any media at any time. It is also overinclusive because it covers all corporations, including those with one shareholder. P. 46.

(4) Because §441b is not limited to corporations or associations created in foreign countries or funded predominately by foreign shareholders, it would be overbroad even if the Court were to recognize a compelling governmental interest in limiting foreign influence over the Nation’s political process. Pp. 46–47.

(d) The relevant factors in deciding whether to adhere to stare decisis, beyond workability—the precedent’s antiquity, the reliance interests at stake, and whether the decision was well reasoned— counsel in favor of abandoning Austin, which itself contravened the precedents of Buckley and Bellotti. As already explained, Austin was not well reasoned. It is also undermined by experience since its announcement. Political speech is so ingrained in this country’s culture that speakers find ways around campaign finance laws. Rapid changes in technology—and the creative dynamic inherent in the concept of free expression—counsel against upholding a law that re-stricts political speech in certain media or by certain speakers. In addition, no serious reliance issues are at stake. Thus, due consid-eration leads to the conclusion that Austin should be overruled. The Court returns to the principle established in Buckley and Bellotti that the Government may not suppress political speech based on the speaker’s corporate identity. No sufficient governmental interest justifies limits on the political speech of nonprofit or for-profit corpora-tions. Pp. 47–50.

3. BCRA §§201 and 311 are valid as applied to the ads for Hillaryand to the movie itself. Pp. 50–57.

(a) Disclaimer and disclosure requirements may burden the abil-ity to speak, but they “impose no ceiling on campaign-related activi-ties,” Buckley, 424 U. S., at 64, or “ ‘ “prevent anyone from speak-ing,” ’ ” McConnell, supra, at 201. The Buckley Court explained that disclosure can be justified by a governmental interest in providing “the electorate with information” about election-related spending sources. The McConnell Court applied this interest in rejecting facialchallenges to §§201 and 311. 540 U. S., at 196. However, the Court acknowledged that as-applied challenges would be available if agroup could show a “ ‘reasonable probability’ ” that disclosing its con-tributors’ names would “ ‘subject them to threats, harassment, or re-prisals from either Government officials or private parties.’ ” Id., at 198. Pp. 50–52.

(b) The disclaimer and disclosure requirements are valid as ap-plied to Citizens United’s ads. They fall within BCRA’s “electioneer-ing communication” definition: They referred to then-Senator Clintonby name shortly before a primary and contained pejorative references to her candidacy. Section 311 disclaimers provide information to the electorate, McConnell, supra, at 196, and “insure that the voters are fully informed” about who is speaking, Buckley, supra, at 76. At the very least, they avoid confusion by making clear that the ads are not funded by a candidate or political party. Citizens United’s arguments that §311 is underinclusive because it requires disclaimers for broad-cast advertisements but not for print or Internet advertising and that §311 decreases the quantity and effectiveness of the group’s speech were rejected in McConnell. This Court also rejects their contention that §201’s disclosure requirements must be confined to speech thatis the functional equivalent of express advocacy under WRTL’s test for restrictions on independent expenditures, 551 U.S., at 469–476(opinion of ROBERTS, C.J.). Disclosure is the less-restrictive alterna-tive to more comprehensive speech regulations. Such requirements have been upheld in Buckley and McConnell. Citizens United’s ar-gument that no informational interest justifies applying §201 to itsads is similar to the argument this Court rejected with regard to dis-claimers. Citizens United finally claims that disclosure requirementscan chill donations by exposing donors to retaliation, but offers noevidence that its members face the type of threats, harassment, orreprisals that might make §201 unconstitutional as applied. Pp. 52–55.

(c) For these same reasons, this Court affirms the application ofthe §§201 and 311 disclaimer and disclosure requirements to Hillary. Pp. 55–56.

Reversed in part, affirmed in part, and remanded.

KENNEDY, J., delivered the opinion of the Court, in which ROBERTS, C. J., and SCALIA and ALITO, JJ., joined, in which THOMAS, J., joined as to all but Part IV, and in which STEVENS, GINSBURG, BREYER, and SO-TOMAYOR, JJ., joined as to Part IV. ROBERTS, C. J., filed a concurring opinion, in which ALITO, J., joined. SCALIA, J., filed a concurring opin-ion, in which ALITO, J., joined, and in which THOMAS, J., joined in part. STEVENS, J., filed an opinion concurring in part and dissenting in part,in which GINSBURG, BREYER, and SOTOMAYOR, JJ., joined. THOMAS, J., filed an opinion concurring in part and dissenting in part.  

Monday, January 18, 2010

"Appellate Court Affirms Order Allowing Plaintiff's Expert to Image Defendants' Hard Drives to Support Claims of Spoliation and Fraud"

The K&L Gates Electronic Discovery Law Blog has an interesting post about imaging hard drives in electronic discovery.  The post is titled "Appellate Court Affirms Order Allowing Plaintiff's Expert to Image Defendants' Hard Drives to Support Claims of Spoliation and Fraud" and is copied below, with all credit to K&L Gates, and can be viewed at THIS link.
Cornwell v. N. Ohio Surgical Ctr., 2009 WL 5174172 (Ohio. Ct. App. Dec. 31, 2009)
In this wrongful death litigation, the trial court granted plaintiff’s motion to allow his forensic expert to create a mirror image of defendants’ hard drives. Plaintiff asserted that examination of the drives would reveal evidence of defendants’ willful alteration or deletion of relevant evidence. The court granted the motion despite defendants’ objections that such access would violate statutory and common law prohibitions against the disclosure of confidential medical information and that such access was not authorized under Fed. R. Civ. P. 34. Defendants appealed. On appeal, the order of the trial court was affirmed.

Plaintiff’s wife, Mary Cornwell, suffered cardiac arrest during arthroscopic knee surgery and died six days later. In plaintiff’s suit for wrongful death, a question arose as to the surgeon’s knowledge of Mrs. Cornwell’s history of hypertension and the medication(s) she was taking. The surgeon claimed no such knowledge. However, several pieces of documentary evidence (including two “office notes” and a letter) called the veracity of that claim into question. Following the depositions of the surgeon’s resident and an employee of the clinic, plaintiff came to believe that defendants had purposefully altered the content of certain electronically created evidence related to the surgeon’s knowledge of Mrs. Cornwell’s medical history. Based upon the deposition testimony and evidence that “despite [plaintiff’s] request” defendants “permitted an information technologist access to the desktop computer upon which the office note was transcribed” and that the computer was thereafter “rendered nonfunctional,” plaintiff amended his complaint to include claims of spoliation and fraud.

Plaintiff then sought to create a mirror image of the hard drives upon which the relevant documentary evidence was created. Defendants objected claiming that “their hard drives contained privileged health information of ‘hundreds of other patients’” and argued, essentially, that such access would violate both statutory and common law prohibitions against the dissemination of confidential patient information. The motion was granted and the court issued a detailed order defining the protocol to be followed when creating and analyzing the mirror image of the drives.

Defendants appealed the order. On appeal, defendants argued that allowing the expert’s access to their computer systems would violate statutory prohibitions against the disclosure of privileged health information and that the search terms would “undoubtedly ‘pull up’ privileged information” thereby subjecting defendants to tort liability for the disclosure of patient information. Like the trial court, the appellate court rejected these arguments. Supporting its conclusion, the appellate court cited the testimony of plaintiff’s expert that he would not open or otherwise view confidential patient information in the course of his forensic process.

The appellate court then turned to defendants’ arguments that plaintiff’s direct access to their computer system was not authorized by Fed. R. Civ. P. 34 and that “they, not [plaintiff] are the only parties who can supply [plaintiff] with the data from [the relevant drives].” Citing the advisory committee notes, defendants argued that “it is only when data cannot be made useable by the responding party that the discovering party ‘may be required’ to use his own devices to translate the requested data into usable form.” Defendants bolstered their argument by citing to In re Ford Motor Co., 345 F.3d 1315 (11th Cir. 2003), a case in which the plaintiff’s request for direct access to Ford’s databases in order to search for additional claims analogous to her own was denied on appeal in the absence of “some condition such as improper conduct on the part of the responding party” and because “the district court failed to state any abuse of the discovery process by Ford, failed to set forth any protocols for [plaintiff’s] search of Ford’s databases, and did not even designate any restricting search terms.”

The appellate court found Ford distinguishable where the plaintiff in the present case learned of the potential evidentiary issues “during discovery [sic] process itself” and where “unlike the circumstance in Ford, it was impossible for [defendants] to produce those documents.” Further, the court noted, “the circumstances under which the letter and the office note disappeared and the computer virus/inoperability was allegedly discovered raises an inference of improper conduct.”

In dismissing defendants’ argument regarding proper access pursuant to rule 34, the court also noted the “direct relationship between the [plaintiff’s] claims of spoliation and fraud” and explained “it is clear that [plaintiff] can only recover on either or both [claims] if he is allowed to determine whether appellants’ [hard drives] were willfully altered (spoliation) and/or [defendants] falsely represented that they had no knowledge of Mrs. Cornwell’s pulmonary hypertension at the time of her arthroscopy (fraud).” The court also reasoned that unlike in Ford, the trial court in this case “set forth a specific protocol, definite search terms, and the means necessary to protect privileged information.”

The trial court’s judgment was affirmed.

A copy of the full opinion is available here.

"Iqbal and the Slide Toward Restrictive Procedure"

Washington & Lee University School of Law Professor A. Benjamin Spencer published a law review article titled "Iqbal and the Slide Toward Restrictive Procedure" in the Lewis & Clark Law Review.  The article, which can be cited: Spencer, A. Benjamin, Iqbal and the Slide Toward Restrictive Procedure (January 11, 2010). Lewis & Clark Law Review, Vol. 14, No. 1, 2010. Available at SSRN:, can be viewed HERE.  The SSRN abstract states:
Last term, in Ashcroft v. Iqbal, the Supreme Court affirmed its commitment to more stringent pleading standards in the ordinary federal civil case. Although the decision is not a watershed, since it merely underscores the substantial changes to pleading doctrine wrought in Bell Atlantic Corp. v. Twombly, Iqbal is disconcerting for at least two reasons. First, the Court treated Iqbal’s factual allegations in a manner that further erodes the assumption-of-truth rule that has been the cornerstone of modern federal civil pleading practice. The result is an approach to pleading that is governed by a subjective, malleable standard that permits judges to reject pleadings based on their own predilections or “experience and common sense.” Such an approach undermines consistency and predictability in the pleading area and supplants, in no small measure, the traditional fact-finding role of the jury. Second, the Court struck a blow against the liberal ethos in civil procedure by endorsing pleading standards that will make it increasingly difficult for members of societal out-groups to challenge the unlawful practices of dominant interests such as employers, government officials, or major corporations. Thus, although Iqbal ultimately does not go much further than Twombly in reshaping civil pleading standards, the decision is an important milestone in the steady slide toward restrictiveness that has characterized procedural doctrine in recent years.

Friday, January 15, 2010

Supreme Court Grants Certiorari In An ERISA Case, An Eleventh Circuit Case & Three Others

The Supreme Court granted certiorari in five cases today, including one from the Eleventh Circuit and one relating to ERISA.  The SCOTUS Blog's summary is below:
Docket: 09-337

Title: Krupski v. Costa Crociere S.P.A.

Issue: Whether Fed. R. Cir. P. 15(c)(1)(C) – which permits an amended complaint to “relate back,” for limitation purposes, when the amendment corrects a “mistake concerning the proper party’s identity” – permits “mistakes” where the plaintiff had imputed knowledge of the identity of the added defendant prior to filing suit.
Docket: 09-448

Title: Hardt v. Reliance Standard Life Insurance Company

Issues: (1) Whether ERISA § 502(g)(1) provides a district court with discretion to award reasonable attorney’s fees only to a prevailing party; and (2) whether a party is entitled to attorney’s fees pursuant to § 502(g)(1) when she persuades a district court that a violation of ERISA has occurred, successfully secures a judicially ordered remand requiring a redetermination of entitlement to benefits, and subsequently receives the benefits sought on remand.

Docket: 09-475

Title: Monsanto Company v. Geertson Seed Farms

Issues: (1) Whether plaintiffs under the National Environmental Policy Act are specially exempt from the requirement of showing a likelihood of irreparable harm to obtain an injunction; (2) whether a district court may enter an injunction sought to remedy a NEPA violation without conducting an evidentiary hearing sought by a party to resolve genuinely disputed facts directly relevant to the appropriate scope of the requested injunction; and (3) whether the Ninth Circuit erred when it affirmed a nationwide injunction that sought to remedy a NEPA violation based on only a remote possibility of reparable harm.

Docket: 09-497

Title: Rent-A-Car, West, Inc. v. Jackson

Issue: Whether the district court is in all cases required to determine claims that an arbitration agreement subject to the Federal Arbitration Act (“FAA”) is unconscionable, even when the parties to the contract have clearly and unmistakably assigned this “gateway” issue to the arbitrator for decision.

Docket: 09-559

Title: John Doe #1 v. Reed

Issues: (1) Whether the First Amendment right to privacy in political speech, association, and belief requires strict scrutiny when a state compels public release of identifying information about petition signers; and (2) whether compelled public disclosure of identifying information about petition signers is narrowly tailored to a compelling interest.
The Court's order can be viewed HERE.

Petition Filed In Florida Supreme Court To Limit Juror Use Of Social Media

A petition was filed in the Florida Supreme Court yesterday to limit the use of social media by jurors.  The petition was prompted by the following:
On August 26, 2009, Justice R. Fred Lewis wrote letters requesting that the Florida Supreme Court Committees for Standard Jury Instructions in Civil and Criminal Cases consider “the problem of jurors engaging in electronic communications, research or the use of technology by jurors during a pending case.”  These letters explained that the Michigan Supreme Court had recently approved a rule banning jurors from using electronic devices during trial and adopted a specific jury instruction on this issue. In the letters, Justice Lewis asked the Civil and Criminal Committees to “jointly propose a uniform approach along with uniform jury instructions to be used in all cases,” in a report filed by January 11, 2010.
The proposal:
The Civil and Criminal Committees propose that this Court use the same core language in both civil and criminal cases to instruct jurors on their use of electronic devices. In this age of electronic communication, many jurors are accustomed to having the ability to instantly communicate with others or perform immediate Internet research.
The Committees recommend that the qualifications instruction be given to all jurors when they are still in a jury assembly room during the qualifications stage and before they have entered a courtroom. While the information heard by jurors before they enter a courtroom is not technically an “instruction,” both committees feel it is important for this Court to consider giving standard language on this issue as early as possible.
The Committees further recommend that jurors be instructed on the use of electronic devices at multiple points in the proceedings: (1) preliminary instructions before voir dire begins; (2) preliminary instructions after voir dire ends and the jury is sworn; and (3) closing instructions. The committees propose using slightly different language at each stage of the proceeding.
The Committees propose inserting identical language into the preliminary instructions. The Committees propose slightly different language for the closing instruction. The Civil Committee asks this Court to instruct the jury: “Do not contact anyone to assist you, such as a family accountant, doctor, or lawyer.” The Criminal Committee, in closing instruction 3.13, felt that references to accountants, doctors, or lawyers are not germane to criminal cases. The Criminal Committee unanimously voted to revise this sentence to read: “Do not contact anyone to assist you during deliberations.”
The petition is below:
Social Media Petition 1-15-2010

Exhibits to the petition can be found at the following links:
Exhibit A;
Exhibit B;
Exhibit C;
Exhibit D;
Exhibit E;
Exhibit F;
Exhibit G; and
Exhibit H.

Thursday, January 14, 2010

Florida Supreme Court Accepts Jurisdiction To Determine Whether Fourth District Previously Erred On Remand

The Florida Supreme Court accepted jurisdiction, again, in the case of Butler v. Yusem, et al (SC09-1508).  The order accepting jurisdiction can be found HERE.  The petitioner's brief on jurisdiction can be found HERE.  The respondent did not file a jurisdictional brief.  The issue raised by the petitioner is:
A prior post, HERE, and stated as follows:

On remand from the Florida Supreme Court (Butler v. Yusem, 3 So. 3d 1185 (Fla. 2009)), the Fourth District applied the tipsy coachmen doctrine to affirm the decision from the Palm Beach County Circuit Court. The Fourth District, as instructed by the Supreme Court, did reverse as to prejudgment interest. The May 27, 2009 decision from the Fourth District can be found here. The decision by the Fourth District reversed by the Florida Supreme Court (966 So. 2d 405 (Fla. 4th DCA 2007)) can be found here.

Justice Canady and Justice Polston dissented from the decision to accept jurisdiction. 

Florida Supreme Court To Consider Presumption Of Legitimacy In Wrongful Death Actions

The Florida Supreme Court accepted jurisdiction in Jonathan Greenfield, M.D. v. Dorothea Daniels, et al (SC09-1675) and Tenet St. Mary’s, Inc. v. Dorothea Daniels (SC09-16765).  The court's order accepting jurisdiction and consolidating the two cases can be viewed HERE.  The Fourth District's decision under review can be viewed HERE

The petitioner's brief on jurisdication in case 1675 can be viewed HERE and the respondent's brief on jurisdiction can be viewed HERE.  The petitioner's jurisdiction brief in case 1676 HERE and the respondent's brief HERE

The Fourth District's decision under review stated:
The personal representative of the estate of Shea Daniels appeals a summary judgment which determined that Daniels’s son, Javon Daniels, was not a survivor under the Wrongful Death Act, because at the time of Javon’s birth, his mother was married to another man, although the mother had not seen her husband for several years. We hold that under the unique circumstances of this case, the court erred in determining as a matter of law that the child is not a survivor in accordance with the wrongful death statute. We reverse.
The personal representative argues that the trial court erred in refusing to allow her to prove that the decedent was Javon’s father, because resolution of paternity may occur in a wrongful death case. The appellees contend that the trial court correctly granted summary judgment because the child was born during the mother’s marriage to another man who, by operation of law, was the legal father of the child and his parental rights had not been legally divested. We hold that the presumption is not a conclusive presumption and the issue of survivorship is to be determined in the wrongful death proceeding.

Florida Supreme Court On Waiver Of Speedy Trial Right Due To Continuane

In State of Florida v. Nelson (SC08-2325), the Florida Supreme Court answered a certified question from the Fourth District and held:
When the State is entitled to the recapture period, a continuance that is chargeable to the defense and made after the expiration of the speedy trial period but before a defendant files a notice of expiration waives a defendant’s speedy trial rights under the default period of the rule.
Justice Canady concurred in result only.  Justice Pariente was recused.

Prosecutorial Misconduct Leads To Reversal Of Death Sentence By Florida Supreme Court

In Johnson v. State of Florida (SC08-1213), the Florida Supreme Court reversed the death sentence imposed on Paul Beasley Johnson because "the record here is so rife with evidence of previously undisclosed prosecutorial misconduct that we have no choice but to grant relief."  Interestingly, it was a 4-1 decision of the court.  Chief Justice Quince and Justice Canady were recused and Justice Polston wrote a dissent. Justice Perry wrote the majorities decision and was joined by Justice Pariente, Justice Lewis and Justice Labarga.  Oral argument took place on October 28, 2009 and can be viewed HERE.

The court had previously stayed Mr. Johnson's execution which was discussed HERE,  the application for stay was discussed HERE, and a prior post HERE discusses the Governor's execution of a death warrant a few months ago.  The court stated:
Specifically, we conclude that newly disclosed evidence shows the following. First, after Johnson was arrested and counsel was appointed, the State intentionally induced Johnson to make incriminating statements to a jailhouse informant in violation of Johnson‘s right to counsel. Because Johnson‘s statements were impermissibly elicited, the informant‘s testimony concerning those statements was inadmissible under United States v. Henry, 447 U.S. 264 (1980). Second, although the prosecutor at Johnson‘s first trial knew that Johnson‘s statements were impermissibly elicited and that the informant‘s testimony was inadmissible, he knowingly used false testimony and misleading argument to convince the court to admit the testimony. And third, because the informant‘s testimony was admitted and then later used at Johnson‘s 1988 trial, and because the State has failed to show that this error did not contribute to the jury‘s advisory sentences of death, we must vacate the death sentences under Giglio v. United States, 405 U.S. 150 (1972), and remand for a new penalty phase proceeding before a new jury.
This result is compelled by the applicable case law of both the United States Supreme Court and this Court. This case law is based on the principle that society‘s search for the truth is the polestar that guides all judicial inquiry, and when the State knowingly presents false testimony or misleading argument to the court, the State casts an impenetrable cloud over that polestar.....In other words, whenever the State seeks to obfuscate the truth-seeking function of a court by knowingly using false testimony or misleading argument, the integrity of the judicial proceeding is placed in jeopardy.
The reversal of the death sentences in this case is directly attributable to the misconduct of the original prosecutor. He knowingly presented false testimony and misleading argument to the court in an effort to convince the court that a jailhouse informant was not acting on instructions from the State when he gathered information from Johnson. In fact, however, the informant was acting on instructions from the State, and this rendered his testimony inadmissible. The prosecutor knew this. Yet, the prosecutor sought, successfully, to gain the admission of the informant‘s testimony through legal legerdemain, and the informant subsequently testified at trial and revealed his impermissible testimony to the jury.
This is not a case of overzealous advocacy, but rather a case of deliberately misleading the court.
(emphasis added).  The dissent stated:
In this case, even assuming that the testimony at issue was false and that the prosecutor knew it was false, a reversible Giglio violation did not occur because the testimony was immaterial. When viewed in context, there is no reasonable possibility that Smith‘s testimony affected Johnson‘s death sentences....In light of the fact that Smith‘s testimony was brief, effectively impeached, cumulative, and included statements supporting Johnson‘s proposed drug use mitigators, there is no reasonable possibility that it affected Johnson‘s sentences. Therefore, no reversible Giglio violation occurred.
As previously posted--You can view the docket for Mr. Johnson's 13 appeals to the Florida Supreme Court here.  The docket for the appeal just determined and discussed above can be seen here.  The Florida Supreme Court's opinion in case number No. SC01-2182 can be found here.  Other prior opinions are referenced below:

Johnson v. State, 438 So. 2D 774 (Fla. 1983): Affirming death sentence.

Johnson v. Wainright, 498 So. 2D 938 (Fla. 1986): Granting petition for habeas corpus and ordering new trial.

Johnson v. State, 608 So. 2d 4 (Fla. 1992): Affirming death sentence.

Johnson v. State, 769 So. 2d 990 (Fla. 2000): Affirming denial of postconviction relief filed pursuant to Florida Rule of Criminal Procedure 3.850.

Johnson v. Moore (Fla. 2002): Denying habeas corpus petition.

Decision Relating To Parental Relocation Of Child Entails A Best Interest Determination At Time Of Hearing - Florida Supreme Court

In Arthur v. Arthur (SC08-1675), the Florida Supreme Court quahsed a decision of the Second District relating to parental relocation of a child and section 61.13001, Florida Statutes (2006). 
Upon review of the Husband's arguments and the well-reasoned analyses in the First District's opinions in Martinez, Janousek, and Sylvester, we conclude that a best interests determination in petitions for relocation must be made at the time of the final hearing and must be supported by competent, substantial evidence. In this case, the trial court authorized the relocation based in part on its conclusion that relocation would be in the best interests of the child twenty months from the date of the hearing. Such a “prospective-based” analysis is unsound. Indeed, a trial court is not equipped with a “crystal ball” that enables it to prophetically determine whether future relocation is in the best interests of a child. Any one of the various factors outlined in section 61.13001(7) that the trial court is required to consider, such as the financial stability of a parent or the suitability of the new location for the child, could change within the extended time period given by the court before relocation. Because trial courts are unable to predict whether a change in any of the statutory factors will occur, the proper review of a petition for relocation entails a best interests determination at the time of the final hearing, i.e. a “present-based” analysis.
*Disclaimer: GrayRobinson, P.A. was involved in this action.

Wednesday, January 13, 2010

Supreme Court Enters Stay Stopping Live Video Of California Same-Sex Marriage Trial

In a 5-4 decision today in Hollingsworth v. Perry,  558 U. S. ____ (2010) (09A648), the United States Supreme Court stayed the broadcast of the same-sex marriage trial in the Northern District of California. 

With regard to the underlying action, the Court stated:
This lawsuit, still in a preliminary stage, involves anaction challenging what the parties refer to as Proposition 8, a California ballot proposition adopted by the electorate. Proposition 8 amended the State Constitution by adding a new section providing that “[o]nly marriage between aman and a woman is valid or recognized in California.” Cal. Const. Art. I, §7.5. The plaintiffs contend that Propo-sition 8 violates the United States Constitution. A bench trial in the case began on Monday, January 11, 2010, in the United States District Court for the Northern District of California.
As for the ruling, the majority stated:
We are asked to stay the broadcast of a federal trial. We resolve that question without expressing any view on whether such trials should be broadcast. We instead determine that the broadcast in this case should be stayedbecause it appears the courts below did not follow the appropriate procedures set forth in federal law beforechanging their rules to allow such broadcasting. Courts enforce the requirement of procedural regularity on oth-ers, and must follow those requirements themselves.
The dissent, written by Justcie Breyer who was joined by Justice Stevens, Justice Ginsburg and Justice Sotomayor, stated:
The Court today issues an order that will prevent thetransmission of proceedings in a nonjury civil case of greatpublic interest to five other federal courthouses located in Seattle, Pasadena, Portland, San Francisco, and Brooklyn. The Court agrees that it can issue this extraordinary legalrelief only if (1) there is a fair chance the District Courtwas wrong about the underlying legal question, (2) that legal question meets this Court’s certiorari standards, (3) refusal of the relief would work “irreparable harm,” (4) the balance of the equities (including, the Court should say,possible harm to the public interest) favors issuance, (5) the party’s right to the relief is “clear and undisputable,” and (6) the “question is of public importance” (or otherwise“peculiarly appropriate” for such action). See ante, at 6–7; Rostker v. Goldberg, 448 U. S., 1306, 1308 (1980) (Brennan, J., in chambers) (stay standard); Cheney v. United States Dist. Court for D. C., 542 U. S. 367, 380 (2004) (noting that mandamus is a “drastic and extraordinary remedy reserved for really extraordinary causes” (internal quotation marks omitted)). This case, in my view, does not satisfy a single one of these standards, let alone all of them. Consequently, I must dissent.

Inconsistent Verdict Or Compromise Verdict? No Damage Verdict Against Insurer Upheld

In Smith v. Florida Healthy Kids Corporation and Clarendon National Insurance Company (4D08-2490), the Fourth District clarified the difference between a "jury verdict reached by an illegal compromise, and a jury verdict reached by an entirely appropriate compromise of viewpoints which inheres in the verdict and as such, is not subject to post-trial scrutiny." 
The case proceeded to trial on a single count for breach of contract seeking, as damages, the amount of unpaid medical bills incurred by Smith as a result of injuries he sustained after being shot several times by a police officer with the Town of Jupiter Police Department....Clarendon denied coverage o n th e basis of a felony exclusion clause in the policy....The jury returned a verdict finding that Clarendon breached its contract with Smith.  The jury rendered a zero verdict on damages, which Smith contends was the result of a compromise verdict requiring a new trial. However, Smith confuses a compromise verdict with an inconsistent verdict, and the cases cited in his brief are distinguishable and entirely inapposite when applied to the facts of this case.
While Florida jurisprudence is replete with examples of compromise verdicts that are characterized by the common elements of hotly contested liability and legal inadequacy of damages, the Supreme Court of Connecticut has recently reiterated its longstanding definition of a compromise verdict:
“A compromise verdict is a ‘verdict which is reached only by the surrender of conscientious convictions upon one material issue by some jurors in return for a relinquishment by others of their like settled opinion upon another issue and the result is one which does not command the approval of the whole panel,’ and, as such, is not permitted.”
Monti v. Wenkert, 947 A.2d 261, 270 (Conn. 2008) (quoting Murray v. Krenz, 109 A. 859, 861 (1920)).
On the facts of this case, it cannot be argued that the jury verdict reached on the issues of liability and damages necessarily evinces the surrendering of conscientiously held opposing convictions upon those two issues by jurors, which resulted in a verdict that was not approved by the entire panel. Indeed, the jury was polled after its verdict; and each confirmed their verdict.
In other words, an inconsistent verdict is when two findings of fact are mutually exclusive.  A verdict is not necessarily inconsistent simply because it fails to award enough money or, as here, no money at all. Under such circumstances, there may be an issue as to the adequacy of the award, but not its inconsistency with any other award contained within the verdict.
The court cited Cooper Tire & Rubber Co. v. Pierre, 18 So. 3d 700 (Fla. 4th DCA 2009) which was discussed HERE.

Eleventh Circuit Modifies Test To Be Used When Applying The Georgia Long Arm Statute

In Diamond Crystal Brands, Inc. v. Food Movers International, Inc. (08-14782), the Eleventh Circuit modified the personal jurisdiction test to be used when applying the Georgia long arm statute to conform to recent decisions from the Georgia Supreme Court.  Specifically, the court stated "In Innovative Clinical & Consulting Servs., LLC v. First Nat’l Bank of Ames, Iowa, 620 S.E. 2d 352, 355–56 (Ga. 2005), the Georgia Supreme Court held that a trial court must engage in a separate, literal application of the Georgia long-arm statute in addition to a due process inquiry in deciding whether personal jurisdiction exists over a nonresident defendant."

Tuesday, January 12, 2010

Supreme Court Reverses Two Cases That Granted Habeas Relief, Stays Live Video Of Same-Sex Marriage Trial & Amends Rules

The United States Supreme Court reversed two decisions granting habeas relief.  In McDaniel v. Brown (08-559), the Court reversed a decision of the Ninth Circuit in  because DNA evidence was sufficient to support the guilty verdict.  In Smith v. Spisak (08-274), the Court reversed the Sixth Circuit's opinion granting habeas relief "because the state court’s upholding of the mitigation jury instructions and forms was not 'contrary to, or . . . an unreasonable application of, clearly established Federal law, as determined by [this] Court,' 28 U. S. C. §2254(d)(1), the Sixth Circuit was barred fromreaching a contrary decision."

The Court also entered THIS order revising the rules of the Supreme Court.  THIS order stayed an order of the Central District of California allowing the live broadcast of a trial relating to California's same-sex marriage laws. 

On January 12, 2010, THIS order was entered denying a stay of execution in Gary Johnson v. Texas.  Certiorari was denied by THIS order in Dolan v. United States

Finally, the Court's January 11, 2010 order list can be viewed at THIS link.

Florida Supreme Court To Review Whether It Is Harmless Error To Admit Uncharged Acts Of Sexual Misconduct

Yesterday, the Florida Supreme Court accepted jurisdiction, without oral argument, in Cooper v. State of Florida (SC09-1169).  The order accepting jurisdiction can be viewed HERE.  The Petitioner's Brief on Jurisdiction can be viewed HERE and the Respondent's Brief on Jurisdiction can be viewed HERE.  The opinion under review was released by the Second District on June 10, 2009 and can be viewed HERE.  The Petitioner's summary of argument from its brief on jurisdiction is below:
In Cooper, the Second District Court of Appeal stated: “Because the taped statement is strong evidence of Cooper's guilt, we conclude that the error of allowing the State to present evidence of multiple sexual acts did not affect the verdict and was harmless in this case. See State v. DiGuilio, 491 So.2d 1129 (Fla. 1986).”
This conflicts with the standard for harmless error analysis required by DiGuilio, Knowles v. State, 848 So. 2d 1055 (Fla. 2003), and State v. Lee, 531 So. 2d 133 (Fla. 1988), which rejects weighing of the evidence and focuses the analysis to examine the effect of the error on the trier of fact to hold that an error is harmful unless it is shown beyond a reasonable doubt that the verdict was not affected.
Later, the Petitioner stated:
The Second District found the admission of numerous erroneously admitted uncharged acts of sexual misconduct without proper notice to be harmless error by applying the wrong standard for harmless error analysis.

PIP Statement Of Charges Must Come From Provider-Not Insured-Under § 627.736(5)(c)1

In State Farm Mutual Automobile Insurance Company v. Pressley (1D09-1481), the First District reversed a grant of summary judgment against State Farm because pursuant to section 627.736(5)(c)1, Florida Statutes, the statement of charges for medical treatments and services must be furnished by a provider.  In this case, the statement was furnished by the insured and, therefore, did not comply with the statute.  The court stated:
State Farm was entitled to summary judgment as a matter of law because it owed no PIP benefits to Ms. Pressley due to her and her medical providers’ failure to comply with sections 627.736(5)(c)1 and 627.736(5)(d)....Additionally, section 627.736(5)(d) requires that “all statements and bills for medical services rendered by any physician, hospital, clinic, or other person or institution shall be submitted to the insurer on a properly completed [form].”....The language of section 627.736(5)(c)1 is clear and unambiguous and, therefore, should be accorded its plain meaning. In this section, the Legislature set forth the exclusive procedures for payment of PIP benefits from the no-fault insurer under a PIP policy....Pursuant to section 627.736(5)(c)1, the statement of charges for medical treatments and services “must be furnished to the insurer by the provider,” and the PIP insurer is only obligated to pay those bills submitted by the provider within the statutory time period. Id. The statute does not make any provision for the submission of medical bills by an insured or other third party.
Judge Wetherell wrote the opinion and was joined by Judge Lewis.  Judge Kahn wrote a dissent.

Eleventh Circuit: § 922(g)(9) Is A Presumptively Lawful Prohibition on Possession of Firearms

In United States v. Ludivic White, Jr. (08-16010), the Eleventh Circuit affirmed the conviction of a person convicted of a misdemeanor crime of domestic violence, in violation of 18 U.S.C. § 922(g)(9).  The decison discussed a number of issues, the last of which was "whether § 922(g)(9) may be properly included as a presumptively lawful “longstanding prohibition[] on the possession of firearms,” a category of prohibitions the Supreme Court has implied survives Second Amendment scrutiny. Heller, __ U.S. __-__, 128 S. Ct. at 2816-17."
The Second Amendment provides as follows: “A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.” U.S. Const. amend. II. Last year, in Heller, the Supreme Court interpreted this language to “guarantee [an] individual right to possess and carry weapons in case of confrontation.” __ U.S. __, 128 S. Ct. at 2797. In Heller, the Court held that the District of Columbia’s ban on handgun possession in the home by law-abiding citizens violated the Second Amendment. Id. In dictum, the Court qualified the right to bear arms: “[l]ike most rights, [it] is not unlimited.” Id. at __, 129 S. Ct. at 2816. “[N]othing in [Heller] should be taken to cast doubt on longstanding prohibitions on the possession of firearms by felons and the mentally ill, or laws forbidding the carrying of firearms in sensitive places such as schools and government buildings . . . .” Id. at __-__, 129 S. Ct. at 2816-17.
Thus, although passed relatively recently, § 922(g)(9) addresses the thorny problem of domestic violence, a problem Congress recognized was not remedied by “longstanding” felon-in-possession laws. We see no reason to exclude § 922(g)(9) from the list of longstanding prohibitions on which Heller does not cast doubt.
We now explicitly hold that § 922(g)(9) is a presumptively lawful “longstanding prohibition[] on the possession of firearms.” Heller, __ U.S. __-__, 128 S. Ct. at 2816-17. Given that Heller does not cast doubt on the constitutionality of § 922(g)(9), we affirm White’s conviction.
(emphasis added).  The published opinion was written by the Honorable Eugene E. Siler, Jr., United States Circuit Judge for the Sixth Circuit, sitting by designation.

Monday, January 11, 2010

Coblentz Agreements, Duty To Defend, Duty To Indemnify & Coverage Issues

In Sinni v Scottsdale Insurance Company, the court entered an opinion granting summary judgment to the defendant.  The case involved an "insurance dispute arises out of a slip-and-fall suit that culminated in a Coblentz agreement."
In certain circumstances, where an insurer has wrongfully refused to defend its insured and there is coverage under the policy, the insurer may be bound by the terms of a negotiated final consent judgment entered against its insured. See generally Coblentz v. Am. Sur. Co. of N.Y., 416 F.2d 1059 (5th Cir. 1969) and its progeny.
In addition to discussing coblentz agreements and what they are, the court discusses an insurer's duty to defend, an insurer's duty to indemnify and general coverage issues.  The opinion is interesting and is below:
Sinni v Scottsdale Insurance, Summary Judgment Order