There’s been considerable teeth gnashing about a 2013 Florida law allowing politicians to hold their assets in blind trusts, and withhold from public disclosure specification of the assets held in those trusts. But the debate is only theoretical at this point, according to Florida’s First District Court of Appeal. For that reason, in its opinion issued today in Apthorp v. Detzner, the 1st DCA punted on the merits of a challenge to the constitutionality of the blind trust provisions.

Apthorp was an aide to former Governor Rubin Askew, who pushed the passage of the Sunshine Amendment, the first successful ballot initiative in Florida, which is now Article II, section 8 of the Florida Constitution. Among other things, the Sunshine Amendment requires full disclosure by public office-holders of their financial interests, to avoid conflicts of interest in their decision-making. With financial holdings public, if a politician voted in a way that benefitted his/her financial interests, that fact would be known to the public and subject to public scrutiny.  

In 2013, the Florida legislature passed section 112.31425, Florida Statutes, which allows public officials to hold their assets in “qualified blind trusts,” for ostensibly the same purpose — to avoid conflicts of interest. A statewide grand jury convened in 2010 had recommended the use of blind trusts for that purpose.

A public office-holder uses a blind trust by placing his/her money with a manager who has full power to buy and sell assets. In theory, then, the public office-holder would not know whether a decision affects his/her financial interests because he/she doesn’t know the identity of the companies in which the assets of the trust are currently invested.

According to the legislature, “if a public officer creates a trust and does not control the interests held by the trust, his or her official actions will not be influenced or appear to be influenced by private considerations.” Correspondingly, the legislature permitted public office-holders to publicly disclose only the total value of the assets held in a blind trust, and not the individual investments of the blind trust.

Apthorp apparently did not see the blind trust provisions as a positive development. He saw the blind trust reporting provisions as a way for public office-holders to essentially hold on to the assets and avoid public disclosure. Soon after the new provisions were enacted, Apthorp sought to block candidates from taking advantage of them by filing a Petition for Writ of Mandamus to the Supreme Court of Florida.

When the Supreme Court ruled that the case should be heard in circuit court, Apthorp sought a declaratory judgment from the circuit court that the blind trust provisions violated the Sunshine Amendment. The trial court ruled that they do not.

Apthorp challenged that ruling on appeal. But the 1st DCA didn’t reach the constitutional issue. Instead, the 1st DCA vacated the trial court’s declaratory judgment after finding that the trial court lacked jurisdiction to entertain the case at all because there was no justiciable controversy.

A bedrock principle of the court system is that courts are constitutionally empowered only to decide actual disputes between the parties. With few exceptions, courts don’t have jurisdiction to issue “advisory opinions,” i.e., to say how they would rule if a certain set of circumstances were presented to them. The plaintiff must assert an actual controversy: that the defendant violated (or is currently violating) the law, that the plaintiff has been injured by the alleged violation, and must seek redress for the alleged injury.

Suits for declaratory judgment are somewhat of an anomoly because they seek a declaration about a future action — before anyone has been harmed — rather than relief for an injury caused by a past or present harm. For example, in a common type of suit for declaratory judgment, an insurer seeks a declaration that its contract doesn’t require it to cover certain damages. That contrasts with the more traditional paradigm suit, in which, for example, an insured might sue the insurer after it had refused to cover damages, claiming the insurer had breached the contract in doing so.

But there are limits to courts’ ability to hear declaratory judgment suits as well, the 1st DCA explained. Under the Florida Supreme Court’s decision in Martinez v. Scanlan, 582 So. 2d 1167 (Fla. 1991), there must still be an actual controversy, “a bona fide, actual, present practical need for the declaration…” (Applying this principle to the insurer’s declaratory judgment suit, there’s a need for a declaration because there’s a present dispute between the insurer and insured over whether the insurer is required to pay for the damages. But if, for example, an insurer sought a declaration that a certain provision in its contract doesn’t require it to ever cover a certain type of damages, without reference to specific damages incurred by a specific insured, under Martinez, there would appear to be no actual present need for a declaratory judgment.)     

The 1st DCA held that there was no actual present need for a declaration regarding the constitutionality of the blind trust provisions because no candidate or public office-holder had yet sought to take advantage of those provisions. “Not only has no public officer ever used the type of ‘qualified blind trust’ authorized by the statute Apthorp is challenging, but his brief concedes that he knows of no constitutional officer or candidate who incorporated a blind trust in the most recent financial statements.” Until that happened, there would be no justiciable question for the court to decide, only a theoretical issue that might arise in the future.

Because it found the courts lacked jurisdiction to decide the issue, the 1st DCA vacated the trial court’s judgment as improperly entered, leaving the constitutional question open for challenge in a later case. In a special concurrence, Judge Thomas emphasized that the opinion should not be read to take a position on the constitutional issue, and hinted that he saw potential constitutional problems. But that issue will need to await a case in which the concerns are not merely theoretical.   


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.


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.              

The end of April traditionally marks the end of the busy season in South Florida, with spring break and holidays over, snow birds returning north, traffic easing, and lower summer rates kicking in. So I guess it’s fitting that our appellate courts last week issued a slew of decisions bringing closure to quite a few unsettled legal issues as well.

Most prominent among them was the decision released by the Supreme Court of Florida last Friday that finally put to rest a battle that had commanded the better part of the Supreme Court’s attention over the past few months — namely, the fight over whether the Florida Senate’s post-census plan for allocating state senate districts complied with Amendment 5, a/k/a the Fair Districts Amendment to the Florida Constitution, enacted by voter initiative in 2010. The upshot was that the Supreme Court concluded the review mandated by Article III, section 16 of the Florida Constitution, by declaring that the plan (as modified in response to the Court’s March 9, 2012 decision) was Constitutionally valid. By doing so, the Court avoided taking the unprecedented step of taking the redistricting process out of the legislature’s hands and writing its own plan.

Last week’s decision unquestionably brought closure to the redistricting process, and the initial challenges to the 2012 legislative redistricting (with the Court even prohibiting motions for rehearing). But it may not bring closure in the larger sense of foreclosing other challenges to the redistricting plans based on the Fair Districts Amendment through separate lawsuits.

The overarching issue in the case from the outset was whether the Court would entertain a full scale challenge to the plans in the course of its mandatory review, which can last for no more than 30 days, and in which no evidentiary record can be built in a trial court for it to work from, or would instead limit its review to “facial” challenges only, as it had in the past. And correspondingly, would the Court’s review of the challenges at this stage, by way of res judicata and/or stare decisis, preclude challenges to the districts that might be pursued in separate litigation, or as was true of the Court’s initial review of redistricting plans before the Fair District Amendments, would the declaratory judgment leave open the possibility of separate challenges?

On the one hand, in its March decision, the Court made clear that the Fair Districts Amendment required, and it was willing to undertake, a more probing review than it had deemed appropriate when reviewing previous redistricting plans. In fact, the March decision was the first time ever that the Court invalidated a redistricting plan, at least in part.

On the other hand, in its April decision, the Court seems to have gone out of its way to point out that its review was only “facial” and that its conclusion was that “the opponents have failed to satisfy their burden of demonstrating any constitutional violation in this facial review.” In declining to consider challenges to certain aspects of the revised plan that could have been made against the original plan, but were not, the Court engaged in a lengthy explanation that the reason it was declining to do so was that it would be unfair at that stage of the game. And in what seems like an unnecessary tangent, the Court expreslly stated not only that the new arguments themselves were not barred by res judicata, but that the Court’s review of redistricting plans under its Article III, section 16 duties, is not the type of proceeding that can have res judicata effect. In other words, if opponents of the redistricting plans are looking to challenge them in a separate lawsuit, the the Supreme Court’s decision is unlikely to get in their way.   

So while the decision undoubtedly brings closure to the Court’s Constitutional review of the redistricting plans, and the redistricting process itself, it’s probably premature to see it as bringing closure to the larger battle over redistricting.     

So much for easing back to work after the long weekend.  At least for judges in the First District and Fourth District Court of Appeal. 

As the Miami Herald reports, the 1st DCA is hearing consolidated oral argument this afternoon in Florida Gaming Centers, Inc. v. Florida Department of Business and Professional Regulation, and Calder Race Course, Inc. v. Florida Department of Business and Professional Regulation, two cases dealing with the effect of the 2004 amendment to the Florida Constitution that authorized certain existing parimutuel facilities in Broward and Miami-Dade counties (subject to voter approval in a county-wide referendum) to install slot machines.  Argument is set to begin at 2:00 PM in Courtroom One, before a panel consisting of Judges Davis, Van Nortwick, and Clark.  You can watch the argument live here.  If you miss it live, audio and video recordings of the argument should be available in the 1st DCA’s archives by no later than tomorrow morning.

[UPDATE: Here are some more details after watching the oral argument.  Former Florida Supreme Court justice Raoul Cantero argued on behalf of Hialeah Park and the other appellees, with Joel Perwin and Bruce Rogow arguing on behalf of the appellants, which are competitor parimutuels.  At issue is the validity of a 2010 law authorizing slot machines at Hialeah Park, and of the license to operate slot machines that the State granted to Hialeah Park last December, in light of the 2004 Constitutional Amendment. 

The 2004 amendment authorized slot machines only for parimutuels that were in operation from 2002-2004.  Hialeah Park didn’t qualify, so in 2010 the legislature separately authorized it to operate slot machines.  But the appellants, which stand lose business to Hialeah Park, argued that the 2004 amendment prohibited the legislature from enacting the 2010 statute. 

Counsel for the appellants conceded that prior to the 2004 amendment, the legislature had the power to authorize slot machines at Hialeah Park or anywhere else, and that it could still do so for facilities in any county except Broward and Miami-Dade, where Hialeah Park is located.  They argued, however, that by approving an amendment authorizing slot machines for Broward and Miami-Dade county parimutuels that met specified criteria, the voters impliedly prohibited the legislature from ever authorizing slot machines anywhere in Broward and Miami-Dade that did not meet those criteria. 

Appellees’ counsel countered that the amendment was merely an action by the voters to authorize slot machines in certain places.  It didn’t purport to prohibit anything, and couldn’t prohibit anything.  If that had been part of the amendment’s purpose, it would have violated the prohibition on multi-subject ballot initiatives, and the ballot materials that described the proposed amendment to voters in 2004, which said nothing about prohibiting anything, would have been misleading.

Handicapping appeals is always dangerous, but I’d put my money on the appellees in this one.  The appellants’ concession about the legislature’s power to authorize slots was probably necessary based on precedent, but it made the appellants’ argument tenuous. 

If the 2004 amendment had been the type of amendment that grants the legislature the power to do something it couldn’t previously do (i.e., to authorize slots in the first instance) then the appellants would have a strong argument for saying that the authorization was limited by its terms to entities that met the amendment’s specifications.  But I don’t see the court buying the argument that even though the legislature generally can authorize slots, an amendment authorizing slots in certain places actually took away the legislature’s power to authorize them in other places.  It takes a pretty big logical leap from the voters saying we’re only authorizing slots in certain places to the conclusion that they were really saying we’re prohibiting the legislature from ever authorizing slots anywhere else in these counties.]                 

A different panel, consisting of Judges Thomas, Wetherell, and Swan, heard oral argument this morning in Graham v. Haridopolos, which involves another Constitutional amendment adopted by ballot initiative, the 2002 amendment creating the Florida Board of Governors to be the central governing body for Florida’s state colleges and universities.  That case has something of a political history, as Democrat Graham, the former Governor and U.S. Senator, spear-headed the drive for passage of the ballot initiative after Republican then-Governor Jeb Bush signed legislation doing away with the former central governing body, the Florida Board of Regents.  Graham is the lead plaintiff/appellant and Mike Haridopolos, Republican and Florida Senate President, is the first named defendant/appellee in the case, although Graham’s co-plaintiff/appellant is former Republican Congressman Lou Frey.  The appellants assert that the Florida Legislature lacks the power to set tuition rates for state universities and colleges, because that power is vested in the Board of Governors.  Video and audio recordings of oral argument should be available in the 1st DCA’s archives shortly. 

And the 4th DCA heard oral argument yesterday in Bronner v. AMP Services, Limited, a case that is part of a multi-national litigation saga over the respective rights of heirs and charitable entities to the proceeds of the estate of Walter Bronner, a Columbian citizen and Jewish philanthropist who amassed a large estate after fleeing the Holocaust, and the estate of his widow, Anna.  According to Adolfo Pesquera’s coverage in the Daily Business Review (reg. req.’d), the Florida litigation came about, despite the Bronners having lived in Monaco prior to their deaths, based on the Bronners’ ownership of a residence in Fort Lauderdale.  Judges Hazouri and Taylor (and a third judge) sat on the panel.     

Long before foreclosure lawsuits flooded Florida court dockets, chief judges here and throughout the country were fretting over how to deal with the even more daunting “asbestos-litigation crisis” [Amchem Products, Inc. v. Windsor, 521 U.S. 591, 597 (1997)]  That ongoing and seemingly endless litigation has been flooding the courts since the 1960s and in the words of Justice Souter, “defies customary judicial administration.” Ortiz v. Fibreboard Corp., 527 U.S. 815 (1999).

Other mass torts (a/k/a toxic torts) have come and gone, but asbestos litigation – the first of the species – lives on. As long as it does, so will legislative and judicial efforts to control, limit, or end asbestos litigation.

Joining several other states, the Florida Legislature passed legislation aimed at curbing asbestos litigation in 2005. Asbestos plaintiff lawyers, who had lobbied hard against the legislation’s passage, challenged it in court almost immediately.

On Friday, July 8, 2011, the Florida Supreme issued its long awaited decision in several of those challenges, American Optical Corporation v. Spiewak, Nos. 08-1616, 08-1640, 08-1617, & 08-1639.  The Court declared the law to be unconstitutional as applied to anyone whose claims had “accrued,” but had not gone to trial, prior to July 1, 2005.

The decision allows a group of plaintiffs to sue who could not have sued under the legislation.  The question is how large that group might be.  According to Adolfo Pesquera’s article in the DBR, some are suggesting that this decision will “open the floodgates.” But I have serious doubts about that.

As I read the decision, it won’t affect anyone who wasn’t diagnosed before the asbestos reform law went into effect on July 1, 2005. According to the Court, if you were diagnosed before that date, it was unconstitutional for the legislation to deprive you of your right to sue, because your claim had already accrued. 

But when your claim accrued, the statute of limitations started running on your claims. The statute of limitations is 4 years. It’s been almost 6 years since July 1, 2005. So if you didn’t haven’t filed suit already, it would seem to be too late now to do so.

So I’m not sure that any new suits can be filed.  And if other plaintiffs did file suit, their cases would presumably have been dismissed long ago under the auspices of the reform law.  Unless they were stayed pending the Court’s decision in American Optical, it would too late to revive most of them now.

A more detailed analysis of the backdrop of the case and the court’s analysis follows.


Continue Reading Florida Supreme Court Restricts Reach of Asbestos Litigation Reform Law