Sixth Circuit Stays Ohio Execution - Ohio Governor Follows By Granting Two Reprieves Of Execution

In Reynolds v. Strickland (08-4144), the Sixth Circuit granted a time barred stay of execution for Lawrence Reynolds Jr. who was scheduled to be executed on Thursday.  Immediately, the Attorney General of Ohio filed a petition in the United States Supreme Court to review the decision.  However, the Governor of Ohio has since issued a reprieve of execution until at least March for Lawrence Reynolds Jr.  Governor Strickland also granted a reprieve of execution until at least April for Ohio death row inmate Darryl Durr.  An article on http://www.cnn.com/ can be found here.  The stay, first ordered by the Sixth Circuit and then extended by the Governor, seems to be in line with this New York Times editorial last Friday titled "Botched Executions" which stated: "Ohio should halt any further executions until it conducts a comprehensive study of what is going wrong in its administration of lethal injection and what can be done to ensure that a travesty like Mr. Broom’s attempted execution does not happen again."  The Broom execution was discussed here and here.

Last week, the Ohio Supreme Court denied a similar request filed by Reynolds [see here].  Judge Martin wrote the Sixth Circuit opinion in which Judge Cole "fully concurred" and filed a separate concurring opinion.  Judge Sutton filed a dissenting opinion.  The Sixth Circuit's opinion stated: 

As a general proposition, this claim is currently barred by the twoyear statute of limitations that we put in place in Cooey v. Strickland (Cooey II), 479 F.3d 412 (6th Cir. 2007), reh’g denied en banc, 489 F.3d 775 (6th Cir. 2007). However, after we decided Cooey II, Ohio revised its execution protocol in May 2009 and experienced serious and troubling difficulties in executing at least three inmates, most recently Romell Broom. These disturbing issues give rise to at least two questions: first, whether Ohio is fully and competently adhering to the Ohio lethal injection protocol given (a) their failure to have a contingency plan in place should peripheral vein access be impossible, (b) issues related to the competence of the lethal injection team, and (c) other potential deficiencies; and second, whether these instances present sufficient new, additional factors to revive Reynolds’ Eighth Amendment claims otherwise extinguished by Cooey II.

Broom’s arguments about these very issues will be heard before the Honorable Gregory Frost of the United States District Court of the Southern District of Ohio; to permit this, his execution has been stayed until at least November 30, 2009. Given the important constitutional and humanitarian issues at stake in all death penalty cases, these problems in the Ohio lethal injection protocol are certainly worthy of meaningful consideration. Judge Frost is best positioned to conduct a comprehensive review of these issues for both Reynolds and Broom.

For the foregoing reasons, we hereby GRANT Reynolds’ motion for a stay of execution and REMAND his case to Judge Frost for fact-finding and evidentiary hearings on the merits of his arguments.

Supreme Court Denies Certiorari In Pledge Of Allegiance Case And Lobbyist Case - Among Many Others

In a 91 page order list, the United States Supreme Court entered a number of orders.  The New York Times has a story [here] stating the Court denied certiorari in over 2,000 cases and providing a brief summary of some of the more noteworthy cases.  The Washington Post has a story here.  The order list includes the following:

FL ASSOC. OF LOBBYISTS, ET AL. V. DIVISION OF INFO. SERVICES: Certiorari was denied. For prior discussions about this case see here and here. For an article in the Miami Heard about the denial see here.

FRAZIER, CAMERON V. SMITH, EARL J., ET AL.: Certiorari was denied. It was a challenge to the constitutionalt of Florida's Pledge of Allegiance law. Articles in the SunSentinel can be found here and here.  The Eleventh Circuit's opinion can be found here and order denying rehearing en banc and the dissent by Judge Barkett can be found here.

STOP THE BEACH RENOURISHMENT V. FL DEPT. OF ENVT'L PROTECTION:  "The motion of Owners' Counsel of America for leave to file a brief as amicus curiae out of time is granted."  For a prior discussion of this case see here and here.

GOLDEN GATE RESTAURANT ASSOC. V. SAN FRANCISCO, CA, ET AL.: "The Solicitor General is invited to file briefs in these cases expressing the views of the United States."  This is an ERISA case from the Ninth Circuit.

WILLIAMSON, DELBERT, ET AL. V. MAZDA MOTOR OF AMERICA, ET AL.: "The Solicitor General is invited to file briefs in these cases expressing the views of the United States."

COSTCO WHOLESALE CORPORATION V. OMEGA, S.A.: "The Solicitor General is invited to file briefs in these cases expressing the views of the United States."

MO GAS ENERGY V. SCHMIDT, MONICA: "The Solicitor General is invited to file briefs in these cases expressing the views of the United States."

RHINE, TRACY V. DEATON, CARL, ET UX.:  "The Solicitor General of Texas is invited to file a brief in this case expressing the views of the State of Texas."

GRAHAM, TERRANCE J. V. FLORIDA: "The motion of petitioner for appointment of counsel is granted. Bryan S. Gowdy, Esquire, of Jacksonville, Florida, is appointed to serve as counsel for the petitioner in this case." For a prior discussion see here.

Certiorari Denied:

TUCKER V. CHIPOLA COLLEGE: Certiorari was denied.

COOK, MICHAEL V. FLORIDA: Certiorari was denied.
HUNTER, JAMES E. V. FLORIDA: Certiorari was denied.                 SETTS, BURT L. V. FLORIDA: Certiorari was denied.
CUNNIFF, RONALD V. FLORIDA: Certiorari was denied.
HUMPHREY, TIMOTHY L. V. FLORIDA: Certiorari was denied.
SIMPSON, JASON A. V. FLORIDA: Certiorari was denied.
TUCKER, JASON V. FLORIDA: Certiorari was denied.
CONSALVO, ROBERT V. FLORIDA: Certiorari was denied.
MESHELL, JOSHUA V. FLORIDA: Certiorari was denied.
AGUILAR, ANTONIO V. FLORIDA: Certiorari was denied.
ATWATER, JEFFREY V. FLORIDA: Certiorari was denied.
PERRITTE, KIRBY V. FLORIDA: Certiorari was denied.
SENGVONG, SAYAPHONE V. FLORIDA: Certiorari was denied.
HERNANDEZ, MICHAEL A. V. FLORIDA: Certiorari was denied.
BARBER, JUSTIN M. V. FLORIDA: Certiorari was denied.
WHEELER, JASON L. V. FLORIDA: Certiorari was denied.
JOHNSON, RICHARD L. V. FLORIDA: Certiorari was denied.
DIAZ, ANGEL G. V. FLORIDA: Certiorari was denied.
LUGO, DANIEL V. FLORIDA: Certiorari was denied.
DIXON, TORRIS V. FLORIDA: Certiorari was denied.
LANGON, STEVE V. FLORIDA: Certiorari was denied.
HARPER, ROBERT V. FLORIDA: Certiorari was denied.
PETERSON, CHARLES C. V. FLORIDA: Certiorari was denied.
CANNEDY, JOHN V. FLORIDA: Certiorari was denied.
HARRIS, ROGER S. V. FLORIDA: Certiorari was denied.
DE LA FE, DAVIDE V. FLORIDA: Certiorari was denied.
BURKELL, ROBERT V. FLORIDA: Certiorari was denied.
MEIZLIK, ROBERT J. V. FLORIDA: Certiorari was denied.
CRUM, EMMITT D. V. FLORIDA: Certiorari was denied.
JONES, WALLACE C. V. FLORIDA: Certiorari was denied. There may be many other cases with Florida connections on the list and I can add those if they are brought to my attention.

Fourth District Reverses Discovery Order Based Upon Journalist's Privilege To Withhold Confidential Informant Information

In Thestreet.com, Inc. v. Carroll (4D09-2649), the Fourth District granted "the petition for writ of certiorari and quash the order denying petitioners’ motion and granting respondent’s motions. We remand the case with instructions to enter an order requiring the return of the documents identified in petitioners’ motion to compel return, striking the use of the documents for any purpose and barring respondent from any further use of, reference to, or reliance on, the privileged information."

The petitioners asserted they inadvertently produced two unredacted documents that revealed the names of a confidential informant.  The respondent/plaintiff refused to return the documents arguing the reporter was using the information as both a sword and a shield.  The court stated:

Certiorari lies to review these orders compelling production of documents and information claimed to be protected under the qualified journalist’s privilege in Florida...First, we find that the material and irreparable harm element of certiorari has been demonstrated by virtue of the privilege being asserted, such that this would be “cat out of the bag” irreparable harm...We also find that the trial court’s order departed from the essential requirements of law when it ordered the discovery notwithstanding petitioners’ assertion of the Florida journalist’s privilege.

***

We disagree with the trial court’s conclusion that petitioners asserted this privilege as both a sword and shield in this case because they did not assert any claims or pleadings seeking affirmative relief...Instead, the discovery in dispute related to an affirmative defense. Further, even if the sword and shield doctrine were to apply in this case, the proper remedy would be to dismiss or strike petitioners’ defenses and not to compel production of the very information claimed to be privileged.

Trial Court Has No Discretion To Stay Final Judgment Of Possession When Tenant Fails To Deposit Rent Payment

In Stetson Management Co., Inc., et. al v. Fiddler's Elbow, Inc. (2D08-4285 and 2D09-959), the Second District reversed the trial court and held:

We agree with appellants that because the tenant, Fiddler's Elbow, did not timely deposit its monthly rent payment as required by court order, that Reagan, as landlord, was entitled to immediate possession of the property...Under the mandatory terms of section 83.232(5), the trial court had no discretion to stay the final judgment of possession; Reagan was entitled to immediate possession of the property upon Fiddler's failure to timely deposit its rent payment.

Fourth District Dismisses Appeal For Lack of Jurisdiction

In Tarik, Inc. v. NNN Acquisitions, Inc. (4D09-2455),  the Fourth District dismissed an appeal for lack of jurisdiction because "An order granting a motion for summary judgment is a nonappealable order.  Rust v. Brown, 13 So. 3d 1105, 1107 (Fla. 4th DCA 2009). In real property cases, the trial court’s order on a party’s summary judgment motion does not determine the 'immediate right to possession' even though it may resolve the underlying legal issues."

Fourth District Denies Caperton Recusal Writ

In E.I. DuPont de Nemours and Company, Inc. v. Aquamar S.A. (4D09-2871), the Fourth District denied a petiton for writ of prohibition seeking the recusal of the trial court judge.  The court stated:

An attorney’s legal campaign contributions within the statutorily permitted amount are not a legally sufficient ground for disqualification...The contributions from attorneys in the firms representing the plaintiffs in this case were all within the statutorily permitted amounts, and the cumulative total of $4650 which the attorneys in the firms contributed to the judge’s reelection campaign does not approach the $3 million contribution at issue in Caperton v. A.T. Massey Coal Co., 129 S. Ct. 2252 (2009).

Jury Compromise Not Sufficient To Set Aside Verdict (Clarified Opinion)

In Cooper Tire & Rubber Co. v. Pierre, 18 So. 3d 700 (Fla. 4th DCA 2009) (4D08-2414), the Fourth District denied a petition for rehearing but issued a clarified opinion and reaching the same result.  The original opinion was discussed here.

Seventh Circuit Electronic Discovery Pilot Program

The Seventh Circuit unveiled its Electronic Discovery Pilot Program today.  You can see the Statement of Purpose and Preparation of Principles here.  The document states:

The goal of the Principles is to incentivize early and informal information exchange on commonly encountered issues relating to evidence preservation and discovery, paper and electronic, as required by Rule 26(f)(2). Too often these exchanges begin with unhelpful demands for the preservation of all data, which often are followed by exhaustive lists of types of storage devices. Such generic demands lead to generic objections that similarly fail to identify specific issues concerning evidence preservation and discovery that could productively be discussed and resolved early in the case by agreement or order of the court. As a result, the parties often fail to focus on identifying specific sources of evidence that are likely to be sought in discovery but that may be problematic or unduly burdensome or costly to preserve or produce.

Order Requiring NCAA To Produce Records Under Florida's Public Disclosure Laws Affirmed

In National Collegiate Athletic Association v. The Associated Press; Cape etc., et al. (1D09-4385), the First District affirmed  the trial court's order requiring the NCAA to disclose documents relating to the academic scandal at FSU.  Prior posts about this case can be found here and here.

The court stated:

The National Collegiate Athletic Association appeals a final judgment requiring it to disclose certain documents to The Associated Press and other news organizations joined as plaintiffs in an action under Chapter 119, Florida Statutes. We find no error in the decision by the trial court. Accordingly, we affirm the judgment for the plaintiffs.

Records created and maintained by the NCAA are not generally subject to public disclosure. However, the documents at issue in this case were examined by lawyers for a public agency, Florida State University, and used in the course of the agency‟s business. Because the documents were received in connection with the transaction of official business by an agency, they are public records. The NCAA has failed to show that an exception applies under state or federal law, and thus the records must be disclosed.

Disclaimer: GrayRobinson is involved with this case.