There’s no denying that public opinion on the dangerousness of cannabis has changed dramatically in recent years. Florida has not taken the steps that some states have taken to legalize cannabis for medical purposes, let alone for general use. But there’s evidence of a change in public opinion in Florida as well.

Florida has legalized “Charlotte’s Web,” a low-THC version of cannabis, for use by patients with certain serious medical conditions. And although a 2014 ballot initiative to legalize marijuana for medical use failed to reach the 60% threshold necessary for enactment, it did garner the majority of the vote (with more than 57% in favor), reflecting that Floridians’ attitudes are changing along with the rest of the country.

Is this changing public opinion impacting judicial decision-making? The February 20, 2015 decision of Florida’s Fifth District Court of Appeal in Agresta v. City of Maitland, gives a hint that that it may be. At issue in Agresta was whether forfeiture of a house used to cultivate cannabis violated the Excessive Fines Clause of the Eighth Amendment to the U.S. Constitution.

Under the Florida Contraband Forfeiture Act, property used in the commission of a crime can be seized. But the 8th Amendment to the U.S. Constitution limits seizure of property, in that it prohibits “excessive fines.”

Joseph Farley (now deceased; the appellant, Agresta, was the representative of Farley’s estate) was convicted of cultivating cannabis in a house he owned in in Maitland and of stealing electricity in doing so, as well as of misdemeanor possession of cannabis. After the convictions, the City of Maitland filed suit to seize his house, which was within 1,000 feet of a school. The trial court ordered the house forfeited to the city.

On appeal, Agresta argued that seizing the house was unconstitutionally excessive and disproportionate to Farley’s crimes. A majority of the 5th DCA panel agreed.

The key issue in the case was the extent of harm caused by Farley’s crimes. To the majority, the main factor was that he had pleaded guilty to crimes for which the maximum monetary punishment was an $11,000 fine. Farley’s house, on the other hand, was valued at between $238,000 and $295,000. 

In the majority’s view, there was no basis to punish Farley with a forfeiture of property that was worth much more than the maximum fine he could have faced. Society’s valuation of the harmfulness of the crimes was critical, and “consideration of the fines approved by the legislature indicates the monetary value society places on the harmful conduct.” 

So it was improper to impose on Farley a forfeiture of property with a much greater value than the maximum fine. In what may (or may not) be a reflection of changing societal views on the harmfulness of marijuana, the majority stated that there was “no evidence that Farley caused harm beyond his commission of the offenses underlying his convictions.” (It’s impossible to know whether the judges in the majority would have reached a different conclusion if Farley had been convicted of using the house to manufacture some other type of illegal drug.)   

a consideration of the fines
approved by the legislature indicates the monetary value society places on the harmful
conduct.

One need look no further than Judge Berger’s dissenting opinion in Agresta to see a much harsher view of the harmfulness of Farley’s conduct, and a resulting contrasting conclusion. Part of Judge Berger’s disagreement with the majority was over whether to consider not only the crimes for which Farley was convicted (by way of a plea deal), but also the crimes with which he was originally charged.

But part her disagreement with the majority appears to have been based on her view of the harmfulness of Farley’s crime of cultivating cannabis:

In determining the harm caused by the defendant, we cannot ignore the public safety concerns posed by trafficking in drugs….While the actual harm Farley caused may not be able to be quantified, the potential harm caused by the magnitude of his enterprise is certainly great and cannot be discounted….Farley was a drug grower, cultivator, and dealer who used the property forfeited solely for the purpose of continuing his criminal enterprise.

Accordingly, Judge Berger did not feel seizure of the house to be grossly disproportionate to the crime, despite the disparity between the value of the house and the maximum fine Farley could have faced for the crimes of which he was convicted.

Cultivation and possession of cannabis, (except for Charlotte’s Web in very limited circumstances), of course, remains illegal under Florida law as well as under federal law. Judges will undoubtedly continue to faithfully apply the law as written, even when it’s unpopular to do so. But there are times when public opinion can impact legal analysis (such as in determining the monetary value society places on the harmfulness of a crime, as in Agresta), so if public opinion continues to change regarding cannabis, it will be no surprise to see effects on appellate courts’ jurisprudence. 

Florida commercial fishing industry, meet the Supreme Court of the United States. The Supreme Court has agreed to hear three cases from Florida in its current term, two of which involve commercial fishing.

In the most recently granted case, the state of Florida is set to do battle with the state of Georgia, in a dispute over Georgia’s consumption of water from two rivers that flow south through Georgia before converging and flowing through northwest Florida into the Gulf of Mexico. On November 3, 2014, the Supreme Court granted Florida’s motion for leave to file its complaint against Georgia, which is tantamount to the Supreme Court agreeing to hear the case. I will preview that case in my next post.  

This post focuses on a second case from Florida involving commercial fishing, Yates v. United States, which has been on the Supreme Court’s docket since late April. Oral argument has been set for today, November 5, 2014. While affecting fewer Floridians, the case has drawn participation from a host of amici curiae (literally, “friends of the court,” parties not directly involved with the case that want to weigh in to assist the Court in reaching its decision), indicating that it is seen as having the potential to have significant legal consequences.

Is Throwing Fish Overboard a Federal Crime?  

In Yates, the Supreme Court is reviewing the Eleventh Circuit’s interpretation of a federal statute that, at first blush, would seem to have nothing to do with commercial fishing. But the 11th Circuit concluded that it is fully applicable to commercial fishermen.

The statute, 18 U.S.C. section 1519, was passed in the wake of the Enron scandal, as part of the Sarbanes Oxley Act (SOX). Intended to avoid a repeat of the type of fraud perpetrated by Enron on investors and employees, SOX imposed more stringent accounting and financial reporting requirements for public companies, as well as other reforms.

Section 1519 was intended to close a loophole that allowed Enron to avoid punishment for its concerted efforts to destroy evidence and thwart investigation of its fraud. Accordingly, the statute makes it a crime to destroy or conceal “any record, document, or tangible object with the intent to impede, obstruct, or influence” a federal investigation. 

Other than federal prosecutors, few would have thought that Congress had John Yates in mind when it passed section 1519. Yates was the captain of a commercial fishing boat that was fishing for red grouper in the Gulf of Mexico in August 2007, when an FWC Officer boarded his vessel to inspect for compliance with fishing regulations. (At the time, Yates’ boat was fishing in federal waters, and the FWC officer had been deputized by the National Marine Fisheries Service.)

The FWC officer measured red grouper he suspected were shorter than 20 inches long, the minimum size then-current regulations allowed to be harvested. He found 72 undersized red grouper, issued a regulatory citation, and placed the undersized red grouper in wooden crates in the fish box on Yates’ boat, instructing Yates and his crew not to disturb them.

After returning to shore, the FWC officer measured the crated fish in the fish box, and found only 69 red grouper to be undersized, three fewer than before. He believed Yates and his crew had replaced the original fish with other fish. A member of Yates’ crew said Yates had instructed the crew to throw some undersized fish overboard.

As a result, prosecutors charged Yates with violating section 1519. Harvesting undersized fish is a civil regulatory violation, which could have subjected Yates only to paying a fine and having his fishing license suspended.

But because he had allegedly thrown undersized fish overboard, he faced criminal penalties under section 1519. He was eventually convicted and sentenced to spend 30 days in jail. Due to the conviction, he has been unable to find work as a captain.

The issue in the case before the Supreme Court is whether throwing fish overboard falls within the conduct made illegal by section 1519. More precisely, the issue is whether throwing fish overboard amounts to destroying or concealing a “tangible object” as that term is used in section 1519.

The 11th Circuit had little trouble concluding that it does. Its reasoning was simple. The Supreme Court has instructed that statutes should be interpreted according to the plain meaning of their terms. Unless the words are ambiguous, courts aren’t supposed to look to the intent behind the law. The term “tangible object” doesn’t appear to be ambiguous. And it literally means any physical object. A fish is a physical object. So the statute would seem to apply to Yates, even though Congress may not have intended it to apply to him.

There is no circuit split on the issue to resolve, which is the primary basis on which the Supreme Court generally agrees to hear cases. No other court of appeals is known to have confronted the issue whether a fish is a “tangible object” under section 1519. And the language of the statute seems clear enough.

So why would the Supreme Court take up the case? The answer may be that the case cries out for placing some limits on the doctrine of blindly applying federal criminal statutes, without any consideration of legislative intent, practical outcomes, or the appropriateness of making conduct a federal crime — at least in some circumstances.

The Supreme Court’s 2014 decision in Bond v. United States may provide a clue as to the Court’s thinking. In that case, the government invoked a statute dealing with chemical warfare to prosecute a woman who had tried to poison her former best friend, after discovering that she was pregnant with the woman’s husband’s child. Although the woman’s conduct fell under the literal meaning of the statute, the Supreme Court looked further. The statute’s wording may not have been ambiguous in itself, but Congressional overreach made it ambiguous in a sense:

[T]he ambiguity derives from the improbably broad reach of the key statutory definition given the term—“chemical weapon”—being defined; the deeply serious consequences of adopting such a boundless reading; and the lack of any apparent need to do so in light of the context from which the statute arose—a treaty about chemical warfare and terrorism. We conclude that, in this curious case, we can insist on a clear indication that Congress meant to reach purely local crimes, before interpreting the statute’s expansive language in a way that intrudes on the police power of the States.

Similar concerns about making it a federal crime to throw fish overboard may have motivated the Supreme Court to take up Yates. Most of the large contingent of amici curiae–including libertarian and pro-business groups, professors, criminal defense lawyers, and former House Financial Services Committee Chairman Michael Oxley, the Oxley in Sarbanes Oxley–urge the Court to go in a similar direction in Yates as it did in Bond. Many of the amicus briefs focus on what they call “overcriminalization” of conduct under federal law, and ask the Supreme Court to impose limits on the permissible reach of federal criminal law.

SOX seems like a good statute to use to advance that argument. It was controversial when passed, with some saying its requirements are too onerous, and it is highly disliked by Wall Street and others in the business community.   

But the question remains whether the majority of the Supreme Court will consider prosecuting a commercial fisherman under SOX a “curious” enough case to justify looking beyond the unambiguous words of the statute. If so, the bigger issue will be how the Court draws the line as to when courts may look behing the plain meaning of statutory terms when determining the scope of conduct made illegal by a federal criminal statute.    

Is a Facebook friendship really a friendship? Can judges be “friends” with attorneys on Facebook? Florida judges and legal ethicists have been debating these questions for more than four years. Florida District Courts of Appeal have now begun to offer their opinions, as Facebook friending has emerged as an issue in motions to recuse trial court judges. But definitive answers remain illusory. 

Back in 2009, the Judicial Ethics Advisory Committee of the Florida Bar thought it had resolved the issue when it released an ethics opinion weighing in on these issues. According to the JEAC’s opinion, a judge is not permitted to be Facebook friends with a lawyer who may appear before him or her.  

But more than three afters that opinion was released, at an educational program discussing this topic, a justice of the Florida Supreme Court reminded appellate judges and lawyers that the JEAC’s opinion is not necessarily authoritative. The JEAC is an advisory committee, the justice pointed out, and the Supreme Court of Florida is the ultimate arbiter of legal and judicial ethics in Florida. 

During the same discussion, other Florida appellate court judges offered varying viewpoints about the propriety of Facebook friending. Judges are permitted to be friends with lawyers in real life, one pointed out, so why can’t they also be Facebook friends with lawyers? Another took the view that because Facebook is so public, allowing a lawyer to list a judge as his/her Facebook friend might create a forum for a lawyer to try to woo clients by giving the impression of having special influence over the judge presiding over their cases, or might cause opposing parties to fear that the judge might be biased in favor of his/her “friend.”

The 4th DCA Frowns on Facebook Friendship

Now Facebook friendship has become an issue in litigation. In September 2012, the Fourth District Court of Appeal in West Palm Beach became the first Florida appellate court to address Facebook friendship between judges and lawyers in Domville v. State, 103 So. 3d 184 (Fla. 4th DCA 2012). Agreeing with the reasoning of the JEAC’s opinion, the 4th DCA held that a judge was required to recuse himself from a case in which the prosecutor was his Facebook friend.

It may be that the prosecutor’s Facebook friendship with the judge entailed no special influence over the judge whatsoever, the 4th DCA explained. But the existence of the Facebook friendship could “create in a reasonably prudent person a well-founded fear of not receiving a fair and impartial trial” and that fear is sufficient to require the judge’s recusal. The Supreme Court of Florida declined to hear the appeal. 

The 5th DCA Disagrees 

On January 24, 2014, in Chace v. Loisel, the Fifth District Court of Appeal in Daytona Beach became the second Florida District Court of Appeal to weigh in. Making clear that the issue is far from settled, the 5th DCA called into question the 4th DCA’s understanding of the implication of Facebook friendship:

 We have serious reservations about the court’s rationale in Domville. The word “friend” on Facebook is a term of art. A number of words or phrases could more aptly describe the concept, including acquaintance and, sometimes, virtual stranger. A Facebook friendship does not necessarily signify the existence of a close relationship. Other than the public nature of the internet, there is no difference between a Facebook “friend” and any other friendship a judge might have. Domville’s logic would require disqualification in cases involving an acquaintance of a judge. Particularly in smaller counties, where everyone in the legal community knows each other, this requirement is unworkable and unnecessary.

To require judges to step aside from hearing cases based on Facebook friendships, the 5th DCA explained, is to misunderstand “the true nature of a Facebook friendship,” and doing so “casts a large net in an effort to catch a minnow.”

Both Courts Agree That Some Facebook Friending is Out of Bounds

Despite its criticism of Domville, the 5th DCA held that the trial court in Chace should have followed the 4th DCA’s guidance and recused herself. Why? 

For two reasons. First, at the time that the motion to recuse was made, Domville was the only decision of a Florida appellate court on the issue of Facebook friendship. When there is only one appellate court decision on an issue, every trial court in the state is required to apply the law as interpreted in that decision.  

Second, the Facebook activity of the judge in Chace was worse and more likely to result in bias than merely being Facebook friends with one of the parties’ lawyers. The judge in Chace actually sent a Facebook friend request to one of the parties, i.e., Ms. Chace, while her divorce litigation was pending before the judge. On her attorney’s advice, Ms. Chace didn’t accept the request, and feared the judge might hold it against her.

The 5th DCA found the judge’s conduct of reaching out to a litigant with a case pending before her more troubling than a mere Facebook friendship between a judge and an attorney. It regarded Ms. Chace’s fear of bias as well founded, and ordered the judge to recuse herself.

An Open Question

The reality is that most judges are former litigators, and most former litigators have friends — on Facebook and in real life — who are litigators. But it is also a reality that even without Facebook friendships, many litigants are suspicious of the relationships between judges and lawyers.

It is unlikely that judges will ever be banned from having real life friendships with lawyers. At least in the short term, judges in Broward, Palm Beach, Martin, St. Lucie, Indian River, and Okeechobee Counties cannot be Facebook friends with lawyers appearing before them. It remains an open question whether they, and judges throughout the state, will be able to maintain Facebook friendships with lawyers in the long run.   

It’s not uncommon to see pro se litigants butt heads with trial judges. It’s less common to see attorneys doing so. Knowing that they will likely appear before the same judge in the future, most lawyers take great pains to put aside personal grievances in the interest of protecting their clients, current and future.

One Tampa lawyer seems to have gotten under the skin of 13th Judicial Circuit Court Judge Tracy Sheehan. And not just any lawyer, but the supervising chief of the Juvenile Division of the Public Defender’s Office for that Circuit. For her part, Judge Sheehan presides over the Juvenile Division of the 13th Judicial Circuit Court.

She went so far as to recuse herself from all cases in which the defendant is represented by an assistant public defender under the lawyer’s supervision. So the presiding judge of the Juvenile Division essentially disqualified herself from hearing any case in which a juvenile is represented by the Public Defender’s office–which is true in most juvenile cases. Can she do that? 

She can. In its decision in Holt v. Sheehan (filed October 11, 2013), the Second District Court of Appeal of Florida had no problem in principle with Judge Sheehan recusing herself from this broad swath of cases, even though it meant that either the chief judge would need to assign a different judge to handle juvenile cases, or the Public Defender would need to assign a different attorney to supervise the assistant public defenders who handle such cases.

In fact, the court noted, it is not uncommon for a judge to recuse herself from all cases in which a particular attorney is involved. That typically occurs in a different type of situation, however, such as where judicial ethics require a judge to recuse herself from all cases in which her parent, child, spouse, or other close relative represents one of the parties.

But the Second District did not approve of the manner in which Judge Sheehan executed her decision to recuse. The judge should have coordinated with the Chief Judge and Public Defender, according to the court. And she should not have filed a “blanket disqualification order” in a particular case, instead handling the issue through internal court procedures.

Most troubling to the court of appeal, though, was the contents of the judge’s order, in which she publicly disparaged the attorney, call her

incompetent, untrustworthy and extremely dilatory in matters related to her legal duties, based upon Attorney X’s actions and inactions in this Division over the past month and based upon Attorney X’s ten year tenure at the Courthouse which has developed her widespread reputation as an inept supervisor and mean spirited individual who publically berates her underlings as “stupid” and “idiotic.”

No doubt the lawyer in question was not pleased to see these comments memorialized in the public record. 

And the 2nd DCA was not happy about the judge’s departure from the measured tones in which judges usually express themselves from the bench. Indeed, the 2nd DCA judges commented that they had “never seen an order comparable to this one filed in a specific court file.” They suggested that Judge Sheehan’s decision “has the flavor of one made in a moment of frustration and exhaustion” and that she re-evaluate it after additional deliberation.

The bottom line for judges is this: They can recuse themselves from all cases in which a particular attorney is involved, and they should do so if they believe their ability to be impartial could be reasonably questioned. But no matter how strong a judge’s feelings may be, blanket recusals are an internal matter of court procedure, and publicly airing personal feelings and opinions should be avoided.

For lawyers, the bottom line remains the same: Don’t butt heads with the judges who preside over your clients’ cases. The Second District stepped in this time, but there’s no guarantee that they will jump in to save your reputation.

In the past few years, the strangest things have started appearing in appellate decisions: images. That has been seen as so revolutionary that it has been widely covered in the legal press, with 7th Circuit opinions authored by Judge Richard Posner (as is often the case) drawing the most attention. The question is: why are judges now inserting images into their opinions?

The answer may be that astute judges are responding to the changing environment in which their opinions are being read. Appellate court opinions have been accessible online for years, and they are now more commonly read on “screens” — computers, iPads/tablets, and smartphones — than in books. And studies have shown that we read differently when looking at a screen than when looking at printed text on paper.

For example, here’s how scientists say our eyes track the data on a webpage:

http://www.usability.gov/images/fpattern.JPG

Notice the concentration of red on the left hand border of the page created by the eye searching down the page for its structure. Note also how the eye tends to skip around.

Astute legal writers — especially appellate lawyers — would be wise to take note of how different the reading experience is on a screen, and to take it into account when drafting court submissions. That point was persuasively made during a presentation at the Florida Conference of District Court of Appeal Judges last fall (which I and other members of the Florida Bar’s Appellate Practice Section were fortunate enough to attend).

Judges (and their clerks) are increasingly reading appellate briefs and other court submissions on computer screens, and when travelling, on iPads, Kindles and other e-readers, or on smartphones. (An informal survey during another presentation at the conference revealed Florida appellate judges to be tech-savvy and partial to iPhones and iPads, although Android phones were also represented).

The trend toward screen-reading will only increase now that e-filing is replacing paper filing.

In order for an appellate brief or any piece of legal writing to be persuasive, it must command the reader’s attention. And to get and keep a reader’s attention when he or she is reading on a screen, attorneys need to adopt the format of their documents to fit the environment.

How? In much the same way as one makes a webpage easy to read and engaging. Here are some suggestions:

  • Add spacing — Text is easier to read when it is surrounded by white space. Increase margins.  Large block paragraphs extending from margin to margin are a relic of book reading. They are difficult to digest when read on a screen, particularly when read on a Kindle or similar e-reader.
  • Shorten the paragraphs. Not only do shorter paragraphs make the document more palatable to the eye (and increase white space), but they also account for the attention span issues that have been engendered by the digital age.
  • Use headings more liberally. Effective headings are alot like soundbites — they grab the reader’s attention and drive home the point quickly before that attention is lost. Hopefully, they also encourage the reader to continue to read and pay attention.
  • Insert document bookmarks. If you’ve opened a .pdf of a recent Florida Supreme Court opinion, you may have noticed a menu bar on the left hand side mapping out the sections of the opinion. Document bookmarks help the reader to get a feel for the overall structure of the document. They also help the reader to easily navigate between sections and arguments. When the reader must scroll up and down the screen to find sections, a traditional table of contents is a much less helpful roadmap than a bookmarks bar, where the reader can click right on the section he or she is looking for.

And finally there’s the most radical idea: illustration with images. This practice is the most obvious concession to the effect the internet and it remains relatively unorthodox and somewhat controversial. So a fair amount of tact and judgment is needed.

But when used appropriately, tactfully, and sparingly, images can be highly effective. (If the picture is worth 1000 words, it can also help to make the brief shorter, which judges always appreciate). If nothing else, images command attention. Just ask Judge Posner. 

The Fourth District Court of Appeal handed down quite a few reversals in criminal cases last week, with Santisteban v. State, No. 4D09-229, the most unusual one I’ve read in a while.  The decision addresses 3 uncommon issues: (1) Is it proper for a judge presiding over a civil suit to also preside over a criminal prosecution arising from the same incident? (2) Can vehicular homicide be proven without showing that the driver was speeding, under the influence, disobeying a traffic sign, or breaking some other obvious traffic rule? (3) Can a sentence below the guidelines be challenged based on the judge’s reference to religious traditions during sentencing?

The Facts

Santisteban was the driver of a tanker truck who caused a tragic accident on the ramp from I-595 onto the Florida Turnpike (near the Fort Lauderdale-Hollywood International Airport).  Witnesses testified that he was driving fast on the ramp, cutting off one car before losing control of his truck, which eventually flipped over and skidded.  

Unlike more typical vehicular homicide cases, Santisteban didn’t crash into another vehicle or run over a pedestrian or bicyclist.  But he was driving a tanker truck full of gasoline, and the gasoline spilled on the roadway and caught fire.

The car that Santisteban had passed on the ramp tried to brake but skidded and drove into the flames, even though it stopped before reaching the truck itself.  The car caught fire and all four passengers were killed. 

Santisteban survived, was charged with four counts of vehicular homicide, and was also sued in a civil case by the survivors of the four victims.  His criminal case went to trial, and he was convicted on all four counts, and sentenced to 36 years in state prison.     

Recusal

Broward Circuit Judge Streitfeld (a well-respected jurist) was assigned to the civil case, and another judge was originally assigned to the criminal case.  But Judge Streitfeld volunteered to take over the criminal trial because his docket was clear during the week it was scheduled for, and he already was familiar with the case.  After realizing that the judge had already ruled in the civil case that Santisteban’s conduct was suffiiciently negligent to allow the plaintiffs to pursue punitive damages, the defense moved to recuse the judge, but he denied the motion.  

The 4th DCA upheld that conclusion.  That holding is fairly unremarkable, as the defense didn’t file signed certifications of the client and counsel in support of the recusal motion, which are required for all such motions under Rule 2.330 of the Florida Rules of Judicial Administration.  It’s also extremely rare for a judge to be recused based on the fact that he/she has ruled against a party on a legal issue.  If it were otherwise, every time a judge issued a pre-trial ruling against a party, that party could claim that the judge was biased and should be recused.    

Reckless Driving?

The 4th DCA’s resolution of the second issue is less straightforward.  In fact, in upholding the defendant’s vehicular homicide convictions, the court appears to have created something of a new standard, in which the dangerousness of the defendant’s vehicle can be considered in setting the standard of care.

Reckless driving is an element of vehicular homicide, so it must be proven beyond a reasonable doubt to sustain such a conviction:

The crime of vehicular homicide is defined as the killing of a human being “caused by the operation of a motor vehicle by another in a reckless manner likely to cause the death of, or great bodily harm to, another.” § 782.071, Fla. Stat. (2004). The degree of culpability required for vehicular homicide is…more than a mere failure to use ordinary care. McCreary v. State, 371 So. 2d 1024, 1026 (Fla. 1979). Vehicular homicide cannot be proven without also proving the elements of reckless driving, which requires proof of a “willful or wanton disregard for the safety of persons or property.” See State v. Del Rio, 854 So. 2d 692, 693 (Fla. 2d DCA 2003); § 316.192(1), Fla. Stat.

In this case, unlike most other vehicular homicide (and reckless driving) cases, the defendant wasn’t driving under the influence of alcohol or drugs, didn’t disobey a traffic sign or light, fail to equip his vehicle with safety devices, and wasn’t even speeding.

But the 4th DCA took a more holistic view of the circumstances to determine that Santisteban’s conduct was reckless.  Although the 2nd DCA has adopted a rule that the driver’s speed alone isn’t enough to show recklessness, the 4th DCA hasn’t.  Where Santisteban goes a step farther is that the “speed” the court considered wasn’t even over the legal limit, despite exceeding a posted advisory speed limit (which, it turns out, is not a violation for which a driver can be ticketed). 

What made his driving reckless was a combination of driving well above the advisory limit (at a speed that caused him to lose control) on a curving ramp, weaving and cutting off one driver and overtaking another.  But the kicker appears to have been the fact that he was driving a truck that was filled with 9,000 gallons of gasoline, such that an accident could predictably lead to the death of others.  In other words, if you are driving in a more dangerous vehicle, you are expected to drive more carefully than a driver of a less dangerous one.

Sentencing

Santisteban‘s sentencing holding is also noteworthy.  Few defendants succeed in having their sentences vacated by arguing that a trial judge who downwardly departed from the guidelines sentencing range erred by not departing even farther.  But Santisteban did just that.  

Why?  Because in imposing the sentence the judge referenced  (one year less than the guideline minimum of 36 years), Judge Streitfeld made a reference to the fact that the length of the sentence fit well with the religious traditions of the victims. 

Even though the sentence itself was permissible, and below the guidelines, the judge’s remarks suggested that he considered a constitutionally impermissible factor in determining the sentence.  “Having found a valid ground for departure, the court nevertheless made what was essentially an insignificant departure to bring the sentence within a religious precept.”

As such, the 4th DCA concluded, this “defect in the sentencing process” required that the sentence be vacated, with a different judge to preside over sentencing on remand.        

Real electronic filing may finally make its way to Florida courts in the not-too-distant future.  But before that happens, the Florida Supreme Court wants to make sure that there isn’t too much private information in court filings for the public to access.

On June 30, 2011, the Court adopted sweeping new rules about what information can and can’t be put in the court file.  Florida litigators who want to avoid the sanctions that can be imposed for violating the new rules shouldn’t wait too long to become familiar with them — they are going into effect on October 1, 2011.

For the time being, the privacy rules don’t affect criminal cases, for the most part, but they affect all civil cases.  And the reprieve in criminal cases isn’t likely to last very long.

Here is a breakdown of the Rule changes you need to know:

Florida Rule of Judicial Administration 2.425

Rule of Judicial Administration 2.425, which was added by the Court’s June 30, 2011 Amendments, contains the overarching principles. So if you learn that Rule (and remember to apply it in whatever context you find yourself) you’ll be most of the way there. But one caution: Rule 2.425 only states a default rule — it gives way to conflicting Rules, statutes, and orders.

This chart spells out the types of information that are subject to Rule 2.425:

Restricted Info:     Can include in a filing?           Exceptions:

Child’s Name           Initials only                        Orders re: time-sharing, parental
                                                                   responsibility, or child support. 
                                                                   Any document re: child’s ownership of real property.
Birthdates               Year only                           Any party’s full birthdate in writ of attachment
                                                                   or notice to payor. Child’s full birthdate when
                                                                   necessary for jurisdiction.
Social Sec. #s              No                               General exceptions
Bank Account #s           No                               General exceptions
Credit/Debit Card #       No                               General exceptions
Charge Account #          No                               General exceptions
Drivers License #          Last 4 digits only            General exceptions
Passport #                   Last 4 digits only            General exceptions
Taxpayer ID #              Last 4 digits only            General exceptions
Employee ID #             Last 4 digits only            General exceptions
Phone #                      Last 4 digits only            General exceptions
Insurance Policy #         Last 4 digits only            General exceptions
Loan #                        Last 4 digits only            General exceptions
Patient/health care #      Last 4 digits only            General exceptions
Customer Accont #        Last 4 digits only            General exceptions
Email address               Truncated                      General exceptions
User name                   Truncated                      General exceptions
Password                     Truncated                      General exceptions
PIN #s                        Truncated                      General exceptions
Other sensitive info:      Truncated as per court order

General Exceptions:

  • Statute, Rule or Order authorizes the inclusion of the information in a filing
  • Account number is necessary to identify property at issue in a case.
  • Information that is “relevant and material to an issue before the court.” [!!! This looks to me like an exception that you could drive a truck through.  It’ll be interesting to see how courts interpret it.]
  • Records in an administrative, agency, appellate, or review proceeding.
  • Information used by the clerk or the court for file and case management purposes.
  • Criminal cases are temporarily exempt.
  • Traffic court cases are temporarily exempt.
  • Small claims cases are temporarily exempt.

A Few Other Notes:

What effect does Rule 2.425 have on parties’ ability to obtain a protective order?  According to the Rule itself, none.  But I’d be surprised if judges’ opinions on what information should be kept private were not influenced by the views of the Supreme Court as expressed in Rule 2.425.

The Rule also claims that it “does not affect the application of constitutional provisions, statutes, or rules of court regarding confidential information or access to public information.”  I’m not sure how that could be so, but again, we’ll see how courts interpret that subsection.

The Court is also amending quite a few other Rules to accomodate Rule 2.425.  Changes are being made to the Rules of Civil Procedure, particularly with regard to filing discovery documents, the Family Law Rules of Procedure, the Rules of Appellate Procedure, Probate Rules, and to a lesser extent, Criminal Procedure and Small Claims Rules, as well as several forms.

The amendments to those rules and forms are listed below. 

Continue Reading A Primer on the New Privacy Rules for Florida Court Filings