Florida District Courts of Appeal

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. 

4th DCA.jpgThe judges of Florida’s Fourth District Court of Appeal can apply the same sharp analysis to solve financial quandaries as they use to parse complex legal issues. That’s what attendees of yesterday’s meeting of the Appellate Practice Section of the Broward County Bar Association learned. 

The 4th DCA–which hears appeals from Broward, Palm Beach, Martin, St. Lucie, Indian River, and Okeechobee Counties–is planning to relocate from its current location on Palm Beach Lakes Boulevard in West Palm Beach to a new building to be constructed between Clematis Street and Datura Street, east of Tamarind Avenue in West Palm Beach. The move is anticipated to take place in early 2018.

At yesterday’s meeting, Chief Judge Dorian Damoorgian, Chief Judge-elect Cory Ciklin, and Judge Jonathan Gerber explained how the relocation plan came to be.

Although the 4th DCA courthouse is old, and designed for a different era, the move is not simply to upgrade to more modern facilities. Rather, it was triggered by an extreme mold infestation that required the courthouse to be closed last year.

While the immediate problem was eventually remediated, it brought to light serious structural issues with the building that made future problems inevitable. Engineers concluded that the building would need to be torn down and rebuilt — an extremely costly proposition, which would be made even more expensive by the need to lease space for court operations while the demolition and construction took place.

The court knew the legislature would not be eager to allocate the funds necessary for such an expensive project. With state budgets tight, and the legislature still weary from the controversy that resulted from the 1st DCA’s construction of a new building a few years ago, it would be necessary for the court to find a less expensive plan for a safe courthouse.

Thus was born the relocation plan. With Palm Beach Lakes Boulevard now a bustling business and retail area, the current courthouse location has become prime real estate, which would allow the property to be sold for several million dollars, the proceeds of which could be applied to construction of a new building.

But wouldn’t the gains of selling the old property be offset by the cost of acquiring new property? As it turns out, no. There was already state-owned property in West Palm Beach where a building could be built across from the West Palm Beach Tri-Rail station, adjacent to the Palm Beach County Health Department and the Department of Children & Family Services.

That space is currently used as a parking lot for the Health Department and DCF. So the new construction will include a parking garage to be used by those agencies as well as the court. During construction, parking will be available in lots located on the south side of Datura Street.  

With the blessing of the Florida Supreme Court, the 4th DCA presented its proposed plan to the Florida legislature. And despite the legislature’s hesistance to use scarce state funds for construction of an appellate courthouse, the court received initial funding of $7.1 million for the project, with the remaining construction funds to be requested in the next legislative session. It seems even the legislature appreciates the 4th DCA’s ability to solve financial problems.          

 

Gun rights advocates received a big win in Florida’s First District Court of Appeal on December 10, 2013. The 1st DCA took the unusual step of issuing seven separate opinions to explain the result.

Guns.jpg

Sitting en banc in Florida Carry, Inc. v. University of North Florida, the 1st DCA voted 12-3 to reverse the dismissal of a suit challenging the University of North Florida’s policy of prohibiting students from keeping firearms in their vehicles on campus. Judge Padovano, joined by Judges Van Nortwick and Clark, dissented.

The Facts

The suit was brought by Florida Carry, an advocacy group, and Alexandria Lainez, a UNF student, challenging a UNF policy that prohibited storage of a “weapon or destructive device,” including a gun, in a vehicle on UNF property, and subjected students to punishment and possible prosecution for violating that policy. Florida Carry argued that UNF has no power to regulate firearms, because by virtue of section 790.33(1), Florida Statutes, the Florida Legislature has “preempted the field” of firearms regulation, i.e., reserved for itself the exclusive right to regulate firearms in Florida. 

The Primary Issue: Is UNF a School District?

On the surface, the appeal required only the resolution of a straightforward question of statutory construction. UNF argued, and the trial court agreed, that despite the legislature’s reservation of the power to regulate firearms, it had delegated to UNF the power to regulate possession of firearms in parking lots on campus.

Under Section 790.115(2)(a)(3) and 790.25(5), the legislature declared that it is generally unlawful to carry firearms on school grounds, with certain exceptions, including carrying a firearm or other weapon in a vehicle if the weapon is “securely encased”: 

it is lawful…for a person 18 years of age or older to possess a concealed firearm or other weapon for self-defense or other lawful purpose within the interior of a private conveyance, without a license, if the firearm or other weapon is securely encased or is otherwise not readily accessible for immediate use…This subsection shall be liberally construed in favor of the lawful use, ownership, and possession of firearms and other weapons, including lawful self-defense…  

But Section 790.115(2)(a)(3) also gives “school districts” the power to “adopt written and published policies that waive” the exception allowing weapons in vehicles “for purposes of student and campus parking privileges.” So the primary issue was whether UNF is a “school district,” such that the legislature delegated to UNF the power to adopt a policy declining the privilege of carrying secured firearms in vehicles in UNF parking lots.

As a matter of statutory interpretation, the 1st DCA judges all agreed that UNF did not meet the definition of a “school district,” such that the legislature did not grant to UNF the power to waive firearms-in-vehicles exception. But that conclusion was not the end of the analysis.

The Tipsy Coachman Doctrine

 A fundamental aspect of appellate practice is that a party seeking to reverse (overturn) a lower court’s decision must confine his/her/its arguments to the issues and arguments that were raised before the lower court. In other words, the court of appeals will reverse a lower court only if it incorrectly ruled on the arguments that were presented to it, but will not fault a lower court for not making a different ruling that might have been mandated by a legal principle that the lower court did not have the opportunity to consider.

But the same is not true when it comes to affirming a lower court’s decision. Under a doctrine known in Florida jurisprudence as the “tipsy coachman” rule (so named based on a poem about a coach driver that reached the correct destination despite not knowing where he was going), an appellate court will affirm the lower court’s decision, even if the lower court’s reasons for reaching its decision were wrong, if the decision was correct for another reason. In other words, if the court of appeals concludes that the correct result was reached for the wrong reasons, the decision will be upheld.

Why So Many Opinions?

The tipsy coachman doctrine played a major role in causing the proliferation of separate opinions in Florida Carry. Judge Padovano concluded in his dissent that the trial court was correct to conclude that UNF had the power to regulate firearms on campus based on a different reason than the one argued by UNF and accepted by the trial court.

The correct reason for the result, Judge Padovano concluded, was the fact that article IX, section 7 of the Florida Constitution confers the powers to “operate, regulate, control, and be fully responsible for the management of the whole university system,” on the Board of Governors of the state university system.

He further concluded that UNF’s regulation, enacted through state universities’ constitutional power to regulate themselves, could not be trumped by the Legislature’s enactment of Section 790.115. Just as “a university has the power to prohibit a student from smoking in a dormitory or drinking an alcoholic beverage on campus even though smoking and drinking may be perfectly lawful in other circumstances,” it has the power to prohibit students from carrying a firearm in a vehicle, even though doing so is legal in other circumstances.

The numerosity of concurring opinions resulted mainly from disagreements among the judges who concurred in the court’s decision to reverse the trial court about how to address the tipsy coachman argument raised by Judge Padovano.

The majority opinion, authored by Judge Roberts, concludes that the power granted to universities under article IX, section 7 does not extend to the power to “deprive students attending UNF of their constitutional right to bear arms as provided by organic law and legislative enactment,” and that the right to bear arms can only be regulated by the Legislature.

Judge Wetherell wrote separately to express the view that the majority and dissent’s discussions of the constitutional powers of state universities is misguided, because the Constitution grants power to the Board of Governors, not universities, and there was no indication that the Board had delegated its power to UNF to pass the regulation at issue. Judge Makar wrote a concurring opinion “to emphasize that Florida’s legal history on the right to keep and bear arms makes this a straightforward case.” He also emphasized that whatever powers universities may have must be tempered by constitutional and legislative limitations.

In his concurrence, Judge Osterhaus departed from the majority’s decision to address Judge Padovano’s analysis of universities’ powers under article IX, section 7 because UNF based its regulation on the power it believed it had under Section 790.115, so that is the only lens through which its powers should be analyzed. Thus, in his view, the tipsy coachman rule did not apply.

Still other opinions resulted from judges wanting to emphasize that the court’s ruling was not the end of the story, and that despite the decision, UNF may still have the power to regulate firearms on campus. Judge Swanson expressed the view that UNF may have the power to regulate firearms on campus under a separate statutory delegation of power, but would have to follow certain procedures to do so. And Judge Benton wrote separately to emphasize that the court’s decision did not mean that “all UNF rules and administrative regulations regarding firearms are null and void.”

What Now?

None of the 1st DCA’s many opinions is likely to be the last word on the issues in the case, which seems almost certainly destined for review by the Supreme Court of Florida. If nothing else, the injection of the analysis of constitutional powers into the case created a basis for the Supreme Court to exercise jurisdiction. Given the public interest in and votality of issues of Second Amendment Rights, my guess is that the Supreme Court will not hesitate to take it up.              

Florida’s acupuncture physicians and massage therapists recently learned that they are (again) ineligible to be paid PIP benefits for treating automobile accident victims. Chiropractors learned that PIP coverage of their services has (again) been curtailed as well. But the changes may be temporary. 

They resulted from a loss suffered by acupuncture physicians, massage therapists, and chiropractors in their court battle against implementation of the 2012 PIP Act amendments to Florida’s No-Fault insurance law, a/k/a PIP. Among other things, the 2012 PIP Act excludes acupuncture and massage therapy from PIP, and limits coverage of chiropractic treatment. Those provisions of the 2012 PIP Act had been put on hold due to a preliminary injunction entered by the Leon County Circuit Court.  

The First District Court of Appeal set aside the preliminary injunction in its October 23, 2013 decision in McCarty v. Myers. But in appellate court decisions, as in many areas of life, the devil is often in the details. And the 1st DCA’s reasoning for overturning the injunction left room for acupuncture physicians, massage therapists, and chiropractors (and their patients) to be optimistic that their efforts to prevent the amendments from being implemented may eventually be successful.

Why? Because the decision came down to who was suing, not the merits of the claims. The litigation was brought by a group of practitioners who have banded together and hired attorneys to sue to block the 2012 PIP Act from going into effect.

Named as plaintiffs were three providers: an acupuncture physician, a chiropractic physician, and a massage therapist. Also named as a plaintiff was “Jane Doe,” who apparently is not a real person, but a fictitious person who was supposed to be a representive of “all those citizens of Florida that are, were, or will be injured as a result of a motor vehicle collision that were also required to purchase $10,000 . . . of PIP insurance coverage but may actually only receive no or $2,500 . . . in benefits.” 

Under the doctrine of “standing,” a person or entity can sue only to seek relief for an injury that he/she/it suffered. Conversely, a person lacks standing to bring a legal claim to enforce the rights of others or of the general public.

The provider plaintiffs asserted that the 2012 PIP Act violated several provisions of the Florida Constitution. In entering the injunction, the trial court seized on one of those asserted constitutional violations, finding that there was a significant possibility that the 2012 PIP Act was unconstitutional for denying to persons injured in accidents the constitutional right of access to courts.   

The problem with entering an injunction based on that claim, according to the 1st DCA, was not that the claim itself lacked merit, but that that the plaintiffs did not have standing to bring it. The plaintiffs were providers, not accident victims, so they were not injured by the asserted denial of access to courts. Even if they may have been injured in a different way, i.e., by losing revenue, the providers did not claim that they themselves had been denied access to courts, so they did not have standing to sue on that claim, or to obtain an injunction based on it — at least not “[w]ithout a showing of an actual denial of access to courts in a specific factual context…”

In a footnote, the court cast doubt on whether the providers could sue under a limited exception to general standing rules, in which a third party may have standing to remedy the rights of a person who is unable to pursue his/her own rights. But the court did not address whether the providers could sue as assignees of accident victims, as providers have done in other contexts–it is common for providers to have their patients assign their insurance benefits to the provider–apparently because the plaintiffs did not claim to have standing as assignees. 

The 1st DCA left open several options for the plaintiffs to continue to pursue their efforts to block implementation of the 2012 PIP Act. Chief among them would be to join as additional plaintiffs some injured patients who have had PIP coverage of acupunture, massage therapy, and chiropractic care denied due to the 2012 PIP Act, i.e., plaintiffs that suffered the asserted injury of being denied access to the courts. Barring that, it may be a viable option for the providers to continue as the only plaintiffs, but as assignees of their patients.

Either way, it seems likely that the providers will be able to find a way to overcome the issue of standing, and ultimately to obtain another injunction. Of course, it is possible that 1st DCA would reverse on the merits if a new injunction is entered and appealed. But its October 23, 2013 decision gives no indication that the court views the claims as unmeritorious.   

Issuing its opinion in DMT vs. TMH, a closely watched case that drew national attention, the Supreme Court of Florida today declared that a woman has constitutionally protected rights to raise a child created by artificial insemination using her ovum, with the fertilized ovum carried and the child born by her then-committed partner, and initially raised by the woman and her former partner. Justice Pariente wrote the opinion for the Court, with Justice Polston writing a dissenting opinion in which two other justices joined.

The facts are these. DMT and TMH were in a committed lesbian relationship for about 11 years. They decided to have a child by in vitro fertilization, using TMH’s ova fertilized by donated sperm, with the fertilized ova implanted in DMT. DMT gave birth to the child and DMT and TMH raised the child together as equal parents, initially in the home they shared. DMT and TMH, who could not marry in Florida, split up about 17 months after the child was born. They initially continued to co-parent the child after the split, agreeing that the child would divide time between their homes. But things turned nasty, and DMT ran away with the child and denied TMH any contact with the child.

TMH finally found DMT in Australia. She sued DMT to establish her right to co-parent the child. The problem for TMH was that section 742.14, Florida Statutes, which deals with surrogacy, extinguishes the parental rights of egg and sperm donors to  children created from their donated genetic material. The trial court found that section 742.14 was controlling, and ruled in favor of DMT, despite stating that DMT’s actions were morally reprehensible and against the interests of the child.

The Fifth District Court of Appeal (in Daytona Beach, which hears appeals from portions of central and northern Florida) reversed the trial court, holding that section 742.14 did not apply, finding TMH was not a “donor” under the statute because she did not intend to give her ova away (i.e. to “donate” it), but rather always intended to raise any child that resulted from her egg, even though she wouldn’t be carrying and giving birth to the child. 

The majority of the Florida Supreme Court rejected that interpretation. It held that section 742.14 did apply, because whether someone is considered a “donor” under the statute doesn’t depend on what her intentions were, but rather only on whether she gave genetic material. That conclusion was compelled by statutory language as well as practical considerations. If intentions matter, then any sperm or egg donor could say that he/she didn’t really intend to give up the child, and thus avoid the effect of the statute, which aims to prevent drawn out custody battles over children created from donated eggs and/or sperm.

But the the majority agreed with the 5th DCA’s result, based on a more monumental, and potentially farther reaching, basis. They found that the statute was unconstitutional as applied to the circumstances in DMT, in that TMH not only contributed genetic material, but also took on the responsibility for raising the child after it was born. Thus, her situation was analogous to an unmarried father of a child, which courts have held has inchoate parental rights that become constitutionally protected if the father takes on the responsibilities of raising the child.

Denying parental rights to an individual in TMH’s circumstances, the majority held, violates the Due Process, Privacy, and Equal Protection clauses of the Florida Constitution, as well as the Due Process and Equal Protection clauses of the United States Constitution.

Not surprisingly, the United States Supreme Court’s decision in United States v. Windsor, 133 S. Ct. 2675 (2013), in which the Court declared Title II of the Defense of Marriage Act to be unconstitutional by denying Equal Protection to gay married couples, figured prominently in the Florida Supreme Court’s constitutional analysis in DMT.

But the Court also based its decision on the Florida Constitution (in addition to the United States Constitution), and was careful to point out that its finding that the Florida Constitution was violated was “separate” from its finding that the United States Constitution was violated. In doing so, the Court likely insulated its decision from further review by the United Supreme Court. The Florida Supreme Court has the last word in interpreting the provisions of the Florida Constitution, and the United States Supreme Court generally does not involve itself in cases in which there is an independent state law basis for the decision, even if federal issues are also decided.

The Court further insulated its decision from review by the United States Supreme Court by grounding its decision on the Privacy clause in the Florida Constitution, which has been held to provide broader protection of privacy rights, including parental rights, than is provided by the United States Constitution. (Unlike the Florida Constitution, the U.S. Constitution does not have an explicit privacy clause, although privacy is addressed in the context of searches and seizures, and has been held to be implied by the Due Process clause.) So the Florida Supreme Court’s interpretation of the United States Constitution (as well as of the Florida Constitution) as protecting the parental rights of women in TMH’s position is likely to stand.  

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.

People make mistakes. Even lawyers. Even judges. We are all human after all, and to be human is to be fallible. In the pressure-packed environment of a trial or hearing, the probability that a mistake will be made is even greater.

Part of the job of an appellate lawyer is to comb through the record of what happened in the trial court, and with the benefit of a fresh perspective, find the errors, and explain to the appellate court what errors the trial judge made. But that is not the end of the story. Not even close. If it was, one would expect every appeal to result in reversal. The reality is otherwise.

Why? There are a host of reasons–ranging from the failure of the side that lost to preserve the issue (by making the argument to the trial judge) to the deference given to the trial judge in making certain decisions that he or she is in a better position to make–and there isn’t nearly enough space here to get into all of them.

The Harmless Error Doctrine

One of the most significant factors–at least when the decision being appealed was reached after a full-blown trial–is the doctrine of harmless error. It has been the subject of recent debate, and the Supreme Court of Florida is poised to set down the definitive word on the issue some time after it resumes its opinion cycle after the summer hiatus.

Harmless error, in a nutshell, is the idea that sometimes a trial judge’s ruling, even though incorrect, was too insignificant in the context of all of the trial evidence the jury saw to have impacted their decision. The doctrine exists because the law recognizes that trials are a tremendous ordeal and after so much effort by the parties, the trial judge, and the jury members, the results should not lightly be tossed aside.

After the two sides and the judge have spent so much time preparing for and conducting the trial, and the members of the jury have sacrificed their time to listen and deliberate and reach a decision, appellate courts are understandably hesitant to undo the result. On the other hand, the law is the law, and litigants have the right and expectation that the law will be applied correctly in their cases, whether or not that may cause inconvenience.

“Harmless error” is where appellate courts draw the line. In Florida, there is actually a statute that prohibits courts from reversing unless “in the opinion of the court to which application is made, after an examination of the entire case it shall appear that the error complained of has resulted in a miscarriage of justice.”

Drawing Lines 

But it is a lot easier to say that an error will not result in reversal when it is harmless than it is to figure out when an error was, in fact, harmless. How does the court know whether there has been “a miscarriage of justice”? Judges do not have the option of calling the jurors and asking them whether their decision would have been different if they had not heard testimony they should not have been allowed to hear, or if they had seen evidence they should have been allowed to see.

So appellate courts have created tests to be used as a substitute. Most recently, the Fourth District Court of Appeal of Florida (4th DCA), sitting en banc, wrestled with what test to use in its late 2011 decision in Special v. Baux, 79 So. 3d 755 (Fla. 4th DCA 2011) (en banc).

The court began by observing that prior decisions of the Supreme Court of Florida and District Courts of Appeal of Florida reflect two ways of looking at whether there was a “miscarriage of justice.”

One approach asks whether the result would have been the same if the error had not been made. That is, looking at all of the evidence, if the jury had seen what it was supposed to see, would it have reached the same decision anyway? If so, the error is harmless. If not, a new trial is required. The 4th DCA called this test a results-oriented approach.

The second approach looked at whether the error had “an adverse effect upon the jury’s verdict.” In other words it asks whether the error “contributed to the verdict.” Was the wrongfully admitted or excluded evidence something that played a part in the jury’s decision? The 4th DCA called this approach an “effect on the fact-finder” test.

Prior 4th DCA decisions had used the results-oriented approach, and every other District Court of Appeal had also adopted some variation of the results-oriented test. Nonetheless, in Special, the 4th DCA declared that approach to be inconsistent with Florida Supreme Court precedent, and that it improperly requires the appellate court to weigh the evidence, which is not the role of an appellate court.

In its place, the Fourth DCA became the first Florida District Court of Appeal to expressly adopt the “effect on the fact-finder approach.” The rule in civil cases, it said, should be that an error is harmless only if it is more likely than not that the error did not contribute to the verdict.

Are There Really Two Approaches? 

I am not convinced that the case law reflects two different approaches so much as two ways of describing the same approach. In my view, when prior cases describe harmless in two different ways, they are doing nothing more than describing the same coin from two opposite sides. Language in prior cases describing the harmless error test as asking whether the error “affected the verdict” may be stating nothing more than the other side of the question of of whether the verdict (i.e., the “result”) would have been different if not for the error.

If they are two approaches, the only difference between the two tests that I can think of is that under the “effect on the fact-finder” approach, an error can be harmful if it is something that the jury likely would have considered in the jury roorm, even if without the error, the jury would have reached exactly the same verdict relying on the other evidence in the case. 

A Better Test?  

I have a hard time understanding why the 4th DCA unanimously endorsed the “effect on the fact-finder” approach. How can there ever be “a miscarriage of justice” when the jury would have reached the same verdict? 

I understand the 4th DCA’s concerns about appellate courts re-weighing the evidence. The first thing any appellate attorney learns is that one should never make an argument that asks the appeals court to weigh the evidence to conclude that the jury reached the wrong verdict.

But examining the trial evidence seems unavoidable in performing a harmless error analysis regardless of the approach. That is particularly true in Florida, where the harmless error statute requires that harmless error be determined based on “an examination of the entire case.” Determining whether the error likely had an effect on the jury does not avoid that problem because one cannot determine how important evidence is without looking at its context.

I also understand the 4th DCA’s goal of enhancing predictability by creating a test that is intended to be less vague and to leave less room for arbitrariness. But I do not see how speculating about whether the jury considered particular evidence is any less vague than speculating about what result the jury would have reached if not for the error.

The 4th DCA also seems to have been concerned that its prior harmless error test was too stringent, i.e., that it made it too difficult to obtain a reversal. I have not done a statistical analysis, but I read almost every opinion issued by every DCA and the Florida Supreme Court. In my observation, which is informed but admittedly unscientific, the 4th DCA had as high a reversal rate before Special as any DCA in Florida.

So however its test was nominally described, I am not sure it was any more stringent in practice than the standards used by other DCAs. In my estimation, the 4th DCA’s ultimate formulation of the test, that an error will only be found to be harmless when the beneficiary of the error shows that is “more likely than not that the error did not contribute to the judgment” throws the balance too far in favor of reversal.

Under this test, I would expect that very few errors will be found to be harmless, and reversal will become increasingly common. As I said at the outset, there are errors in every trial. There is some evidence of this happening already. No doubt that is a good thing for parties that lose at trial. For parties that obtain favorable jury verdicts, not so much.

We Should Not Have to Wait Long for Clarification 

The real impact of the rule set down in Special has yet to be determined. The 4th DCA certified to the Supreme Court of Florida the question of what harmless error standard should be used in civil cases as a question of great public importance and the Supreme Court has taken up the issue. Briefing is complete, and the Supreme Court heard oral argument in April. It is now ripe for a ruling.

So we should not have too wait long to know how likely it will be that future mistakes, which will surely be made, will result in a new trial. 

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 Florida Supreme Court justices and District Court of Appeal judges who were up for retention votes this year had a great day yesterday. Congratulations go out to all of the retained justices and appellate judges:

Florida Supreme Court:

Justice R. Fred Lewis

Justice Barbara J. Pariente

Justice Peggy A. Quince

Despite facing organized opposition that was unprecedented in the history of retention elections in Florida, all three justices were retained by sizeable margins. As I wrote in my previous post, I view this as a victory for Florida’s non-partisan and generally non-political, merit-based system of selecting and retaining Supreme Court justices and appellate judges. A ballot initiative to give the state senate more power over appointments to the Supreme Court, via proposed Amendment Number 5, also failed.

From what I’ve heard, there were considerably fewer undervotes (ballots on which voters marked preferences in other races but left the merit retention questions blank) than in previous retention elections. So perhaps the contested retention elections had a subsidiary benefit — helping voters become more aware of, and educated about, our Supreme Court justices. Credit for that goes to the many attorneys, laypersons, and legal organizations who worked to educate voters about the retention elections.  

First District Court of Appeal:

Judge Simone Marstiller

Judge Stephanie W. Ray

Judge Ronald V. Swanson

Judge Bradford L. Thomas

Second District Court of Appeal:

Judge Anthony K. Black

Judge Darryl C. Casanueva

Judge Charles A. Davis, Jr.

Judge Edward C. LaRose

Third District Court of Appeal:

Judge Angel A. Cortinas

Judge Kevin Emas

Judge Ivan F. Fernandez

Judge Leslie B. Rothenberg

Judge Richard J. Suarez

Fourth District Court of Appeal:

Judge Burton C. Conner

Judge Carole Y. Taylor

Almost a quarter of DCA judges statewide were on the ballot, including 4 of the 1st DCA’s 15 judges, 4 of the 2nd DCA’s 14 judges, 5 of the 3rd DCA’s 10 judges, 2 of the 4th DCA’s 12 judges, and none of the 5th DCA’s 10 judges. All were easily retained.

Yes votes for retaining each of the 2nd DCA, 3rd DCA, and 4th DCA judges exceeded 72%. The 1st DCA judges were also retained by comfortable margins, although they received slightly less support, with yes vote percentages ranging from a little less than 62% to a little more than 66%. I’m not aware of there being organized opposition to retention of any of the DCA judges, or what accounts for the slightly lower numbers across the board in the 1st DCA retention elections.

Congratulations to all. I look forward to practicing before you in the coming years.

The Supreme Court of Florida has created quite a stir among the less tech-savvy members of the legal community (and who don’t practice in federal court) with its June 2012 announcement that Florida courts are about to join the electronic age. Preparation for these moves has been ongoing for over a year, as noted on this blog here. Here’s a quick overview of the imminent changes, and the dates they become effective.

Email Service to Replace Service by Mail & Fax

Mandatory service of all filings by email instead of snail mail will begin September 1, 2012 (pushed back from the originally announced July 1, 2012). Until the electronic filing system at the clerks’ offices is up and running, filings will be served by sending them as attachments (which must be less than 5 MB in size) to an email addressed to opposing counsel. Lawyers will be required to designate an email address for service in each case. Mandatory service by email will not go into effect in criminal, traffic, and juvenile cases, however, until October 1, 2013.

Pro se litigants are exempt from the email service requirement, but may choose to opt in. There is also an out for lawyers that don’t have an email account and don’t have Internet access to move to be excused from email service. Are there really still attorneys out there that can honestly say, and would openly admit, that neither they nor anyone else in their office has email or Internet access? The Supreme Court seems to think so.

E-discovery

Also going into effect on September 1, 2012 are the Court’s amendments to the Florida Rules of Civil Procedure to formally address discovery of electronically stored information. The gist of the new e-discovery procedures is as follows:

(1) Electronic information is officially discoverable.

(2) In non-complex cases, e-discovery may, and in complex cases, it must, be addressed during a case management conference.

(3) E-discovery requests can be objected to based on the burden or cost of accessing the information or producing it in the requested form, but the resisting party has the burden to prove the validity of the objection, and the court can order production if good cause is shown even if that showing is made. Courts are also authorized (encouraged?) to place limits on e-discovery.

(4) Electronic information must be produced in the form in which it is stored or in a reasonably usable form. The requesting party may also specifiy the form in which the information should be produced.

(5) A party can’t be sanctioned for failing to preserve electronic information if it is destroyed through routine, good faith processes. But the committee notes make clear that if the party is put on notice via a request to preserve, a court order, or agreement, destruction through routine processes is less likely to be considered in good faith unless it occurs notwithstanding the party’s good faith efforts to prevent the routine destruction.

(6) Electronically stored information can be subpoenaed.

(7) Resolving e-discovery issues by agreement is highly encouraged.

The amendments appear to be modeled on the e-discovery provisions in the Federal Rules of Civil Procedure. As has been the case in the federal system, it will probably take some time — and litigation — before the Rules’ general provisions are given enough shape to provide clear guidance. In the interim, it’s a good idea to make every effort to reach an agreement with opposing counsel on the scope of e-discovery, if at all possible.

Electronic Filing

Electronic filing of documents with the courts will take a little longer to implement. Except for the few trial courts in which electronic filing is already in place, electronic filing will go into effect according to a staggered schedule depending on the type of case/court:

Appeals and original proceedings in District Courts of Appeal:          October 1, 2012

Appeals and original proceedings in the Supreme Court of Florida:   October 1, 2012

(Clerks of court, however, will not be required to transmit the record on appeal electronically until January 1, 2013).

Civil division of trial courts:                April 1, 2013

Probate division of trial courts:           April 1, 2013

Small claims division of trial courts:    April 1, 2013

Family division of the trial courts:       April 1, 2013

Appeals to the circuit courts (in the types of cases identified above):  April 1, 2013

Criminal division of the trial courts:     October 1, 2013

Traffic division of the trial courts:        October 1, 2013

Juvenile division of the trial courts:     October 1, 2013

Appeals to circuit courts in criminal, traffic, or juvenile cases:  October 1, 2013

Note, however, that these dates are being set as the latest times for implementation of e-filing, and do not prevent individual courts from starting e-filing sooner. Courts that have the technical capability will undoubtedly implement e-filing sooner than October 1, 2013.

For example, the Palm Beach County Clerk’s Office recently announced that e-filing will be phased in, beginnin with e-filing in residential foreclosure cases in Palm Beach County Circuit Civil Division AW right after labor day, on September 4, 2012. The Broward County Clerk’s Office, which initiated e-filing in certain complex civil cases in January 2012, and has had voluntary e-filing in probate cases in place for more than a year, is likely to phase in e-filing in other types of cases before October 2013 as well.

Be sure to check the clerks’ websites periodically to stay abreast of new e-filing developments.