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Litigation Update

The Litigation Privilege

As noted by the Florida Supreme Court in Levin, Middlebrooks, Mabie, Thomas, Mayes & Mitchell, P.A. v. U.S. Fire Insurance Co:,[i] “absolute immunity must be afforded to any act occurring during the course of a judicial proceeding, regardless of whether the act involves a defamatory statement or other tortuous behavior … so long as the act has some relation to the proceeding.”[ii] 

Several recent cases have focused what constitutes a “judicial proceeding”[iii] or what constitutes “a statement made in connection with a judicial proceeding.”[iv]  For example, in Ross v. Blank,[v] the Fourth District Court of Appeal held that a psychologist involved in a divorce proceeding was entitled to absolute immunity for allegedly defamatory statements made about one of the parties to the court appointed psychologist involved in the custody dispute and to the guardian ad litem. In LatAm v. Holland and Knight,[vi] the Third District held that the litigation privilege applied even though the court in which the proceedings were instituted lacked subject matter jurisdiction.[vii]

In Ball v. D’Lites Enterprises, Inc.,[viii] the Fourth District held that allegedly defamatory statements made by a party on its commercial website regarding the subject of the litigation were not made “in connection with the litigation.”[ix]  The Court analogized “the publication of statements on internet to calling a press conference with the media or otherwise publishing defamatory information to the newspapers or other media” for which the Court noted there was no litigation privilege.[x]

Currently pending before the Florida Supreme Court is Delmonico v. Traynor[xi] in which the Fourth District Court of Appeal held that allegedly defamatory statements made by an attorney, while acting as defense counsel during interviews of potential witness, were absolutely privileged as a matter of law,  because “the statements bore ‘some relation” to the proceeding.”[xii] The Court opined that the attorney “should receive the same absolute immunity in questioning potential witnesses before their appearance at deposition or in the courtroom, as if the questioning were during a formalized judicial proceeding.”[xiii] 

In dissent Judge Warner, noted that that:

If the purpose of absolute immunity is to preserve the attorney and party’s right to present their case at trial without fear of intimidation, I do not think that policy is advanced by protecting a lawyer who is defaming a party to a witness outside of a proceeding at a time when both parties are not present and do not have an opportunity to be heard.  In fact, rather than enhance the truth-seeking function at trials, such conduct as alleged here may taint the entire process by influencing with false and defamatory information about an adversary.[xiv]

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[i] 639 So. 2d 606 (Fla. 1994).

[ii] Id. at 608. 

[iii] Echevarria, McCalla, Raymer, Barrett & Frappier v. Cole, 950 So. 2d 380, 385 (Fla. 2007), Justice Pariente concurring.

[iv] Ball v. D’Lites Enterprises, Inc., 65 So. 2d 637, 638 (Fla. 4th DCA 2011).

[v] 958 So. 2d 437 (Fla. 4th DCA 2007).

[vi] Case No. 3D10-3042 (Fla. 3d DCA October 19, 2011).

[vii] Id. slip opinion at pp. 9-10.

[viii] 65 So. 2d 637 (Fla. 4th DCA 2011).

[ix] Id. at 639.

[x] Id. at 639-640.

[xi] 50 So. 3d 50 (Fla. 4th DCA 2010); Case No. 10-SC1397 (Fla.).  This case was argued on June 9, 2011 and a video of the oral argument can be viewed at: http://wfsu.org/gavel2gavel/archives/flash/10-1397.php  

[xii] 50 So. 3d at 6-7.

[xiii] 50 So. 3d at 7. 

[xiv] 50. So. 3d at 12.

Health Law Update

Florida Supreme Court Invalidates Nursing Home  Arbitration Agreement as Against Public Policy

By: Melanie R. Leitman, Associate Attorney

Edward Clark was admitted to OP Winter Haven, a nursing home, by his niece, Gayle Shotts. Ms. Shotts signed all of the relevant paperwork on behalf of her uncle, who had suffered brain damage as a result of a car accident many years prior. One of the documents Ms. Shotts signed on behalf of her uncle contained a clause requiring arbitration in accordance with the American Health Lawyers Association arbitration rules for “any dispute that might arise”[1] during Mr. Clark’s stay at the nursing home. The arbitration agreement also prohibited the arbitrators from awarding punitive damages and provided that the terms of the agreement were severable. Upon Mr. Clark’s death in 2003, Ms. Shotts, as personal representative, filed suit against the nursing home and several other related parties alleging negligence and breach of fiduciary duties. The defendants responded to the complaint by moving to compel arbitration and Ms. Shotts objected, arguing that the agreement was void and unenforceable as against public policy. The trial court, concluding that the agreement containing the arbitration clause was “enforceable, not severable and not repugnant to the public policy of the State of Florida[,]”[2] found in favor of the defendants and granted their motion to compel.

Ms. Shotts appealed the trial court’s decision and the Second District Court of Appeal affirmed the trial court’s ruling with respect to the motion to compel but found error in the trial court’s holding that the agreement was not severable.  Additionally, the Second DCA found that the agreement could potentially violate public policy because of its provision prohibiting punitive damages, although because this portion could be severed by the arbitrators, the agreement as a whole was not unenforceable for public policy. Ms. Shotts then appealed to the Florida Supreme Court, raising six issues. The court granted her request for discretionary review and addressed three of her claims.

First, Ms. Shotts contended that under relevant law, the court, not the arbitrator, must decide whether or not an arbitration agreement violates public policy. A review of federal and state law found that when the enforceability argument goes to the arbitration clause itself, courts are the more appropriate entity to resolve the dispute because it goes to the making of the agreement as opposed to the contract generally. Decisions on public policy concerns regarding arbitration agreements fall under the jurisdiction of the courts because if the arbitration agreement is violative of public policy, then no valid agreement exists and there is nothing for the arbitrator to decide.

Second, Ms. Shotts claimed that it was error for the Second DCA to fail to find that the agreement’s limitation of remedies (excluding punitive damages) violated public policy. A review of Florida cases found that all districts but one have found limitation of remedies clauses in nursing home contracts to be either violative of public policy or unconscionable. More specifically, the Legislature provided for certain remedies in the Nursing Home Resident’s Act and the American Health Lawyers Association rules contain provisions which are inconsistent with and thus undermine these statutory remedies.  Thus, the Florida Supreme Court held that “any arbitration agreement that substantially diminishes or circumvents [the statutory] remedies stands in violation of the public policy of the State of Florida and is unenforceable.”[3]

The third of Ms. Shotts’s claims that the Florida Supreme Court addressed involved the severability of the limitation of remedies provision. The district court found that the relevant provision’s potential to violate public policy did not render the entire agreement unenforceable because it was severable. Ms. Shotts disagreed. The Florida Supreme Court first conducted a review of relevant Florida law and found that generally, [w]hether a contract is entire or divisible depends upon the intention of the parties.”[4] More specifically, nearly all of the DCAs have ruled on the issue of public policy implications and severability of limitation of remedies provisions in nursing home contracts, reaching varying results.[5] In examination of the facts of the present case, the Court found that the limitation of remedies clause invoking the American Health Lawyers Association rules to be so inextricably intertwined with the essence of the agreement that it could not be severed without the trial court being forced to re-write the agreement, which is not an appropriate role for the court to take.[6]

Finally the Court addressed the facts of this case in light of the recent United States Supreme Court holding in Rent-A-Center, West, Inc. v. Jackson, where the U.S. Supreme Court held that the arbitrator must decide whether or not an arbitration agreement is unconscionable. The Florida Supreme Court, however, found Jackson to be distinguishable from the case at hand because the agreement that Ms. Shotts signed, unlike the agreement in Jackson, contained no delegation provision.

Justice Polston dissented from the majority opinion, reasoning that the agreement’s language providing for arbitration of “any dispute” is a delegation provision, thus bringing this case under the scope of the Jackson holding. Consequently, the enforceability of the agreement, he argued, along with other disputes arising under same, should have been determined by the arbitration panel and not by the court.

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[1] Shotts v. OP Winter Haven, Inc., 36 Fla L. Weekly S665, S674 (2011).

[2] Id. at S666 (quoting Shotts v. OP Winter Haven, Inc., 998 So. 2d 639, 640-41 (Fla. 2d DCA 2008)).

[3] Id. at S671.

[4] Id. at S672 (quoting Local No. 234 v. Henley & Beckwith, Inc., 66 So. 2d 818, 821-22 (Fla. 1953)).

[5] The First DCA held that such a provision is severable so long as the agreement contains a severability clause. Alterra Health Care Corp. v. Estate of Linton, 953 So. 2d 574, 578 (Fla. 1st DCA 2007). The Second DCA, in the present case and in other cases, has held that severability exists, even in the presence of a nonseverability clause. See e.g., Manor Health Care Servs. v. Stiehl, 22 So. 3d 96 (Fla. 2d DCA 2009). The Fourth and Fifth DCAs both have held that regardless of the presence of language addressing severability, limitation of remedies clauses are not severable. Place at Vero Beach, Inc. v. Hanson, 953 So. 2d 773 (Fla. 4th DCA 2007); Fletcher v. Huntington Place Ltd. P’ship, 952 So. 2d 1225 (Fla. 5th DCA 2007).

[6] The Court relied heavily on the reasoning in Hanson as support for its conclusion on this issue. Id. at S672-73.

First DCA Update

Legislative Powers At Issue  

The nature and extent of legislative power has been the focus of three recent cases decided by the First District Court of Appeal.

In the first case, Graham v. Haridopolis,[i] at issue was the power of the Legislature to establish and expend state university tuition and fees in light of the adoption of Article IX, Section 7(d) of the State Constitution by the electorate at the November 2002 general election.  The appellants argued that the amendment effectively transferred the power to set and expend university tuition fees from the Legislature to the Board of Governors, which under the amendment was empowered to “operate, regulate, control, and be fully responsible for the management of the whole university system.”[ii]

The Court rejected this argument, noting that “[t]he Florida Constitution vests the ‘power of the purse’ in the Legislature by granting it exclusive and plenary authority to raise[iii] and appropriate[iv] state funds.”[v]  The Court further noted:

The legislative power to raise funds is not limited to the imposition of taxes; it includes the power to impose fees necessary to offset the costs of using state government services,  Likewise, the power to appropriate is not limited to certain types of funds; it extends to all funds in the State Treasury from whatever source.[vi]

 (Emphasis in text.)  “University tuition and fees are unquestionably state funds; they are collected by state universities for the use of their services and the monies collected are deposited into the state treasury.”[vii]

In the second case, Florida Gaming Centers, Inc. v. Florida Department of Business and Professional Regulation,[viii] at issue was the power of the Legislature to regulate slot machine gambling, in light of the adoption of Article X, Section 23 of the State Constitution by the electorate at the November 2004 general election.  The appellants argued that the amendment limited slot machine gambling to certain facilities in Miami-Dade and Broward Counties.[ix]

The Court rejected this argument, noting that “the only thing that Article X, section 23 limited was the Legislature’s authority to prohibit slot machine gaming in certain facilities in the two counties.”[x]  The Court further noted:

… Article X, section 23 provides no indication that Florida voters intended to forever prohibit the Legislature from exercising its authority to expand slot machine gaming beyond those facilities in Miami-Dade and Broward Counties meeting the specified criteria, Nor is there any indication that Florida voters intended to grant the seven entities who met the criteria a constitutionally-protected monopoly over slot machine gaming in the state.

Thus, it appears that the Court opened the door to the Legislature to exercise its near plenary powers over gambling to authorize slot machine gambling beyond those facilities in Miami-Dade and Broward Counties referenced in Article X, Section 23 of the State Constitution.[xi] 

In the third case, Haridopolis v. Citizens for Strong Schools, Inc.,[xii] at issue are “significant, but unsettled questions about Florida’s ‘paramount duty’ to provide ‘for the education of all children residing within its borders’” in accordance with Article IX, Section 1(a) of the State Constitution.[xiii]  The question before the Court is whether the educational adequacy provisions in the State Constitution are judicially enforceable. 

In denying a petition for a writ of prohibition, a sharply divided First District Court of Appeal deciding case en banc concluded that the trial court did not act outside of its jurisdiction in denying a motion to dismiss complaint because it “raises only nonjusticiable ‘political’ questions … questions which the trial court – and, indeed, any court (according to petitioners – lacks jurisdiction to entertain.”[xiv]  While noting that the trial court had jurisdiction to grant declaratory relief on the complaint, the majority cautioned that it was “uncertain as to whether – and do not decide that – the trial court has any ability to grant relief beyond that point.”[xv] 

Recognizing the significance of the issue presented in this case, the majority certified the following question to the Florida Supreme Court as being a question of great public importance:

Does Article IX, Section 1(a), Florida Constitution, set forth judicially ascertainable standards that can be used to determine the adequacy, efficiency, safety, security, and high quality of public education on a statewide basis, so as to permit a court to decide claims for declaratory judgment (and supplemental relief) alleging noncompliance with Does Article IX, Section 1(a), Florida Constitution?[xvi]

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[i] Case No. 1D11-384 (Fla. 1^st DCA October 12, 2011).

[ii] See Article IX, Section 7(d) of the State Constitution, cited at slip opinion p. 3.

[iii] Case No. 1D11-384 (Fla. 1^st DCA October 12, 2011), note 3 in slip opinion:  “Article VII § 1(d), Fla. Const. (“Provision shall be made by law for raising sufficient revenue to defray the expenses of the state for each fiscal period.”).

[iv] Id. note 4 in slip opinion:  “Article VII § 1(d), Fla. Const. (“No money shall be drawn from the state treasury except in pursuance of appropriation made by law.”).

[v] Id. slip opinion p. 4.

[vi] Id. slip opinion p. 5.

[vii] Id. slip opinion p. 6.

[viii] Case No. 1D10-6780 (Fla. 1^st DCA October 6, 2011).

[ix] Id. slip opinion p. 6.

[x] Id. slip opinion p. 6.

[xi] The appellants before the District Court have sought to have the Florida Supreme Court exercise its discretionary jurisdiction to hear this case.  See Florida Gaming Centers, Inc. v. Florida Department of Business and Professional Regulation, Case No. 11SC-2182 (Fla.).

[xii] Case No. 1D10-6285 (Fla. 1^st DCA November 23, 2011).

[xiii] Id. slip opinion p. 2.

[xiv] Id. slip opinion p. 3.

[xv] Id. slip opinion p. 15.

[xvi] Id. slip opinion p. 16.

 

Election Law Update

Rolling Back the Rights of Florida’s Voters – Part 2: Limiting Early Voting

Early voting in Florida has its genesis in 1998 with the advent of “in person absentee voting” in the offices of the supervisor of elections.[i] “In person absentee voting” was discretionary with each supervisor of elections.  In 2000, additional procedures and formal requirements attendant to “in person absentee voting” were established.[ii] To utilize this method of absentee voting, an elector was required to certify that he or she was unable to attend the polls on election-day.[iii]  In 2001, this prerequisite to “in person absentee voting” was removed.[iv]

As a result of problems with the 2002 primary election in Broward and Miami-Dade counties, Interim Secretary of State Jim Smith encouraged vote statewide to “vote early” at the offices of the supervisors to help ease potential general election-day problems.[v] As a result, the Legislature, in 2004, enacted a mandatory and uniform early voting statute.[vi] 

The 2004 enactment mandated early voting in the main or branch office of the supervisor of elections.  Additionally, the supervisor was permitted to designate any city hall or public library as an early voting site so long as such site is geographically located so as to provide all voters in the county an equal opportunity to cast a ballot.  The legislation required that early voting begin on the 15^th day before an election and end on the day before an election.  During the applicable period, there would be an opportunity “for at least 8 hours per weekday” and “8 hours in the aggregate for each weekend.”[vii]

In 2005, the legislature made several changes to early voting law.  The law was amended to: clarify that early voting is a convenience, not a right; require the supervisor of elections to designate early voting sites no later than 30 days prior to the election and not allow a change in the sites thereafter except upon approval of the division; require early voting to end on the 2nd day before the election, rather than the day before the election; specify that early voting be conducted for 8 hours each weekday instead of at least 8 hours and 8 hours in the aggregate each weekend; require all early voting sites to be open on the same days and for the same amount of time at each site; creates an exemption from the 15-day early voting requirements for municipalities and special district elections that are not held in conjunction with state and county elections.[viii]

Early voting is popular among voters.  In the 2004 election cycle, statewide 18.7% of all voters voted early in the general election;[ix] in the 2006 cycle, statewide 16.1% of all voters voted early in the general election;[x] in the 2008 cycle, statewide 31.8% of all voters voted early in the general election;[xi] and in the 2010 cycle, 14.3% of all voters voted early in the general election.[xii] 

During the 2011 session the Legislature substantially revised the laws relating to early voting.[xiii]  Eliminated was the requirement that all early voting sites in a county be open on the same days for the same amount of time. The supervisor of elections must notify the Division of Elections no later than 30 days before an election of the address of each early voting site and the hours each will be open for early voting.  The previously mandated 15-day early voting period was reduced to eight days: early voting shall now begin on the 10^th day before an election and end on the 3^rd day before a state or federal election and in such elections early voting shall be conducted for not less than 6 and no more than 12 hours per day at each site during the early voting period.  Prior to the 2011, early voting was mandated for a period of 96 hours over a 13 day period. As a result of the 2011 amendments, the early voting period could be limited in state or federal elections to as few as 64 hours or a maximum of 96 hours over the 8 day period, within the discretion of each supervisor of elections.[xiv] 

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[i] See §17, Chapter 1998-129, Laws of Florida; codified at Section 101.657, Florida Statutes (1998). 

[ii] See §2, Chapter 2000-249, Laws of Florida; codified at Section 101.657, Florida Statutes (2000).

 [iii] Id.

[iv] See §55, Chapter 2001-40, Laws of Florida; codified at Section 101.657, Florida Statutes (2001).  In 2003, specific voter identification requirements for first time voters who had registered by mail were made applicable to “in person absentee voting.”  See §21, Chapter 2003-415, Laws of Florida; codified at Section 101.657, Florida Statutes (2003).

[v] See Senate Budget Committee, Bill Analysis and Fiscal Impact Statement for CS/CS/SB 2086,” p. 11. 

[vi] See §7, Chapter 2004-232, Laws of Florida, and §13, Chapter 2004-252, Laws of Florida; codified at Section 101.657, Florida Statutes (2004).

[vii] For the purposes of a special election, early voting would begin 8 days before an election and end on the day before the election.  See §13, Chapter 2004-252, Laws of Florida; codified at Section 101.657, Florida Statutes (2004).

[viii] See §45, Chapter 2005-277, Laws of Florida and Chapter 2005-278, Laws of Florida;  codified at Section 101.657, Florida Statutes (2005).

[ix] Department of State, Division of Elections, “November 2004 General Election Ballots Cast.”

[x] Department of State, Division of Elections, “November 2006 General Election Ballots Cast.”

[xi] Department of State, Division of Elections, “November 2008 General Election Ballots Cast.”

[xii] Department of State, Division of Elections, “November 2010 General Election Ballots Cast.”

[xiii] See Section 101.045(2)(b), Florida Statutes, as amended by §39,  Chapter 2011-40, Laws of Florida.  . 

[xiv] In Gustafson v. Illinois State Board of Elections, 2007 U.S. Dist. LEXIS 75209 (E.D. Ill. 2007), the court held that the Plaintiffs presented insufficient evidence to find that the inconsistencies in early voting from one jurisdiction to the next are so great that the federal judiciary and force the state to reconsider how it applies state law. 

Election Law Update

Rolling Back the Rights of Florida’s Voters – Part 1: Limiting the Ability to Change of Name or Address at the Polling Place on Election Day

In 1971, Florida law[i] was amended to provide that an elector whose name changed because of marriage or other legal process may vote in the precinct in which he or she is registered by executing an affidavit attesting to the name change.  An elector who had moved from the precinct in which registered would be permitted to vote in the precinct of his or her former residence within the county.[ii] 

In 1977, the law[iii] was further amended to permit an elector who moved from the precinct within the county in which registered to another precinct within the county to vote in the precinct where he moved his residence upon execution of an affidavit setting forth the precinct in which he or she is registered to vote as well as his or current residence.[iv]  In that enactment, an elector who changed his or her residence to another county within the state would be permitted to vote in that election for President and Vice-President of the United States, United States Senator, and for statewide offices.[v]

With minor substantive modification, this statutory scheme was in effect at the time of the 2000 presidential election.[vi]  In the wake of the 2000 election, Governor Jeb Bush established a Select Task Force on Election Procedures and Technology to “make written policy recommendations and / or proposed legislation to improve the election procedures, standards and technology in each of Florida’s 67 counties.”[vii]

In the course of its deliberations, the Select Task Force considered reports that during the 2000 general election that numerous voters had been denied their right to vote under the applicable procedures because they sought to vote up at the wrong precinct, had moved and had not changed their addresses, or had not timely registered to vote.[viii]  While the Task Force did not investigate individual cases, it made the following recommendation:

The Division of Elections should examine viable options for using provisional ballots so that voters whose eligibility is in question at the polling place on election days can submit in appropriate races subject to verification of their eligibility.[ix]

Accordingly, Florida law was amended to require that any elector whose name or residence had changed within the county and whose eligibility to vote could not be determined would be required to vote a provisional ballot, subject to verification by the canvassing board.[x]  Neither the Select Task Force nor the Legislature recommended or made any changes to Florida law which permitted an elector, who changed his or her residence to another county within the state, to vote in that election for President and Vice-President of the United States, United States Senator, and for statewide offices.

The Select Task Force, noting that representative democracy demands that all eligible voters have an opportunity to participate in the election process, recommended “that the Florida Legislature provide funds for the design of a comprehensive statewide online voter registration database to replace the current ‘batch’ system and begin implementing the database as soon as possible.”[xi]  To that end, in 2001, the Legislature appropriated $2 million to the Department of State “for the analysis, design, development, operation of a statewide voter registration database….”[xii]  In 2005, the Secretary of State, as the chief elections officer of the State of Florida, was specifically tasked with the responsibility for implementing, operating, and maintaining, the statewide voter registration system.[xiii]

 In 2005, Florida law was amended to allow voters that move within the state (not just in their respective counties) to vote in their new precinct upon execution of an affidavit setting forth the precinct and county in which he or she is registered to vote as well as his or current residence.[xiv] In the same legislative enactment, because statewide residence changes were authorized, the Legislature deleted provisions of Florida law which permitted an elector who changed his or her residence to another county within the state to vote in that election for President and Vice-President of the United States, United States Senator, and for statewide offices.[xv]  With minor substantive modification, this statutory scheme was in effect prior to the 2011 legislative session.[xvi]

During the 2011 legislative session, the Legislature amended Florida law to limit the ability of electors to vote when they have moved without changing their address with the supervisor of elections prior to the voter registration book closing date. The amendment creates three classes of electors: electors who move within the county; electors who move from outside the county; and electors who move from outside the county and who are members of the military and their families.[xvii]

An elector who moves from a precinct within the county in which he or she is registered to another precinct within the county is permitted to vote a regular ballot in the precinct where he or she has moved, upon execution of an affidavit setting forth the precinct in which he or she is registered to vote as well as his or her current residence. If elector moves from a precinct outside the county, he or she may not change his or her residence at the polling place and vote a regular ballot; rather he or she must vote a provisional ballot.  However, members of the military and their families who change their address from outside the county are not limited to voting a provisional ballot. Upon execution of the affidavit, they will be permitted to vote a regular ballot.[xviii]

It is not yet clear what the effect of the bill will be on electors, other than members of the military and their families, who move from a precinct outside the county. The bill says they will vote a provisional ballot, but will that vote count.  While such an elector may not change his or her residence at the polling place at the time of the election, it has been argued by some that the provisional ballot will be counted if the canvassing board determines that the elector was a registered Florida voter in another Florida county and that he or she did not otherwise vote in that election. However, inasmuch as the amendment specifically states that “except for an active military uniformed service voter or a member of his or her family, an elector whose address is from outside the county may not change his or her legal residence at the polling place and vote a regular ballot, however, such an elector is entitled to vote a provisional ballot.”[xix]

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[i] Section 97.091, Florida Statutes (1971); renumbered as Section 101.045, Florida Statutes, by §20, Chapter 1994-224, Laws of Florida.

[ii] See §1, Chapter 1971-307, Laws of Florida. 

[iii] Section 97.091, Florida Statutes (1977); renumbered as Section 101.663, Florida Statutes, by §20, Chapter 1994-224, Laws of Florida.

[iv] See §3, Chapter 1977-175, Laws of Florida.

[v] Section 97.102, Florida Statutes (1997); renumbered as Section 101.663, Florida Statutes, by §22, Chapter 1994-224, Laws of Florida.

[vi] See §6, Chapter 1978-403, Laws of Florida; §4, Chapter 1980-292, Laws of Florida; §5, Chapter 1989-338, Laws of Florida; §20, Chapter 1994-224, Laws of Florida; §1391, Chapter 1995-147, Laws of Florida. 

[vii] Executive Order 2000-349, December 14, 2000.

[viii] The Governor’s Select Task Force on Elections Procedures, Standards and Technology, “Revitalizing Democracy in Florida,” (March 1, 2001), p. 56.

[ix] Id.

[x] See §§35, 36, Chapter 2001-40, Laws of Florida.

[xi] The Governor’s Select Task Force on Elections Procedures, Standards and Technology, “Revitalizing Democracy in Florida,” (March 1, 2001), p. 51.

[xii] See §71, Chapter 2001-40, Laws of Florida.

[xiii] See Section 98.035, Florida Statutes, as created by §17, Chapter 2005-278, Florida Statutes.

[xiv] See §31, Chapter 2005-278, Laws of Florida. 

[xv] See §40, Chapter 2005-278, Laws of Florida.

[xvi] See §16, Chapter 2008-95, Laws of Florida.

[xvii] Section 101.045(2)(b), Florida Statutes, as amended by §26,  Chapter 2011-40, Laws of Florida.    

[xviii] It is well established:

The right to vote is protected is protected in more than the initial allocation of the franchise. Equal protection applies as well to the manner of its exercise.  Having once granted the right on equal terms, the State may not, by arbitrary and disparate treatment, value one person’s vote over that of another. See, e.g., Harper v. Virginia Bd. of Elections, 383 U.S. 663, 665, 16 L. Ed. 2d 169, 86 S. Ct. 1079 (1966) (“Once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.”) It must be remembered that “the right of suffrage can be denied by debasement or dilution of the weight of the citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise.” Reynolds v. Sims, 377 U.S. 533, 555, 12 L. Ed. 2d 506, 84 S. Ct.1362 (1964).

Bush v. Gore, 531 U.S. 98, 104-105, 121 S. Ct. 525, 530, 148 L. Ed.388, 398 (2000).    

[xix] Section 101.045(2)(b), Florida Statutes, as amended by §26,  Chapter 2011-40, Laws of Florida. 

Law Practice - Ethics Updates

Two recent cases have highlighted issues that should be a fundamental for every attorney practicing law. 

In Florida Bar v. Mirk, Case No. SC08-1423 (Fla. April 7, 2011), the Court disbarred an attorney for multiple trust account violations with the admonition:

Once again, we emphasize to the members of the Bar that an attorney is never permitted to withdraw or otherwise use client funds held in trust except as specifically authorized under the Bar Rules. To engage in such conduct, a lawyer risks full disciplinary sanctions under the Rules Regulating the Florida Bar, including disbarment. As we have stated, disbarment is presumed the appropriate discipline when an attorney misappropriates client money held in trust and [Lawyer] simply has not presented any arguments to rebut the presumption in this case.

Slip opinion at p. 11.

The case is also instructive on the need to have in place a written agreement setting forth the nature of the representation and the arrangements for compensation.  The primary dispute concerned the Lawyer’s compensation for work he did for the client.  There was no written agreement between the Lawyer and the client.  The Lawyer testified that he had an oral agreement that he would be paid a $40,000 flat fee for each company he established and $100,000 per year to act as corporate counsel.  The Client testified that there was no flat fee agreement and that the Lawyer agreed to be paid a portion of the future profits in the event that the venture was successful.  The referee believed the client.  Id. at p. 4.

The Court noted” “When a lawyer fails to place an agreement for representation in writing, he or she is always at risk of becoming involved in a fee dispute with a client.”  Id. at p. 10.

In Golden Gate Home, LC v. Levy et al, Case No. 3D10-1209 (Fla. 3d DCA April 13, 2011), the Court, in reversing a summary judgment entered which dismissed with prejudice portions of a legal malpractice complaint, held:  “Whether [lawyers] neglected a reasonable duty and proximately caused Golden Gate’s loss (and whether the actions of Golden Gate and successor counsel were an intervening, superseding cause) are, at this stage, questions of fact and not law.”  Slip opinion at pp. 12-13. 

The underlying facts indicated that in the course of the lawyers’ representation of Golden Gate, and subsequent to the matter being set for trial, the lawyers did not file a witness or exhibit list; nor did Golden Gate respond to interrogatories or a request for production. Despite a subsequent court order compelling Golden Gate to respond to the outstanding discovery requests, Golden Gate did not file any response to the outstanding discovery.  A month later the lawyers moved to withdraw from the case.  The motion to withdraw was granted and Golden Gate was given 15 days to obtain substitute counsel, who filed a “conditional” notice of appearance, stating that it would undertake the representation only if the court granted a continuance of the scheduled trial date. The trial court denied the motion for continuance. Eventually, the trial court dismissed the complaint for failure to obtain subsequent counsel, then reinstating it after obtaining counsel, and then reconsidering that order and dismissing the complaint with prejudice.

Golden Gate filed a legal malpractice action against the lawyers, alleging that the lawyer's "actions during the [litigation], together with their late withdrawal from the [litigation], left Golden Gate without counsel who could come into the case and properly prepare for a trial that was less than thirty days away. [The lawyers] moved to dismiss, contending that it was not their withdrawal from the case, but rather the independent, superseding actions of Golden Gate and its subsequent counsel that caused whatever losses Golden Gate claims to have suffered."  Id. at pp. 8-9.

The Court noted that “the fact the [lawyers] had withdrawn from the case does not necessarily absolve them of potential liability for subsequent events.”  Id. at p. 9. Citing to a Fourth District case, Dadic v. Schneider, 722 So. 2d 821 (Fla. 4th DCA 1999), the Court stated:

We recognize that the attorney-client relationship here ended before the ultimate conclusion of the underlying lawsuit.  However, while employment is an element, an attorney need not be in privity with the client throughout the entire course of the underlying action.  Where the attorney-client relationship ends before its conclusion, the question is whether the attorney proximately caused the client’s damages.

Id. at  p. 11.

Employment Law Update

Labor and Employment Law

In what appears to be a case of first impression the Fourth District Court of Appeal ruled that an employee could essentially sue her employer for sexual harassment without completing the pre-suit steps required by either Florida or Federal law. Gerber v. Vincent’s Men’s Hairstyling, Inc., Case No. 4D09-5059 (Fla. 4th DCA March 30, 2011)

Jamie Gerber was employed by Vincent’s Men’s Hairstyling as a stylist.  She filed a lawsuit against its owner and the company alleging that the owner touched her in a sexual manner on several occasions.  Her complaint included counts for negligent retention, battery and vicarious liability.  Vincent’s defended by arguing that although the complaint sounded in negligence it was actually a complaint for sexual harassment and because the employee had not completed the pre-suit filing requirements necessary to file a sexual harassment complaint, should be dismissed.  Additionally the employer argued that it was immune from suit because of workers compensation immunity.

The mere fact that the plaintiff possessed statutory causes of action did not bar her from asserting parallel common-law causes of action in tort.  The appellate court held that “Florida law permits multiple causes of action to co-exist.” Slip opinion at p. 2. Explaining further, the Court explained:

The fact that the complaint alleges a ‘hybrid’ of facts supporting both common law tort violations and statutory sexual harassment violations is not dispositive, as the allegations in the plaintiff’s complaint can stand on their own under common law. If, upon completion of the EEOC administrative process, plaintiff chooses to seek amendment of her complaint to add statutory sexual harassment claims, that is her prerogative. Meanwhile, plaintiff is free to file a complaint setting forth claims based on common law torts, as opposed to statutory violations. The trial court thus erred in dismissing her complaint.

Id. at pp. 2-3.  

Based on its reading of the Byrd v. Richardson-Greenshields Sec., Inc., 552 So. 2d 1099 (Fla. 1998), the Court concluded that Ms. Gerber’s common-law claims were not barred by the doctrine of worker’s compensation immunity because “the plaintiff’s injuries allegedly resulted from a battery, which is not directly related to the work environment or work related activities.”  Slip opinion at p. 5.

The court noted conflict with Doe v. Footstar Corporation, 987 So. 2d 1266 (Fla. 2d DCA 2008), in which the Second District Court of Appeal, based on its reading of Byrd, “held that the worker’s compensation exclusivity rule barred the plaintiff’s cause action against their child’s employer for negligent hiring, retention, and supervision and for assault, battery, and rape.” Slip opinion at p. 4.  It is the view of the Second District, as expressed by Judge Casanueva, in a concurring opinion in Footstar Corporation v, Doe, 932 So. 2d 1272, 1278, that there was no common law cause of action for sexual harassment and that plaintiffs who choose not to plead a statutory cause of action for sexual harassment face a difficult task in overcoming the employer’s worker’s compensation immunity defense.

Accordingly, the Fourth District certified conflict between its decision in Gerber with that of the Second District in Doe to resolve the apparent conflict between the circuits on this important issue. Slip opinion at p. 5.

Prepared by:     Brennan Donnelly

                                Labor & Employment Law Practice Group  

                                bdonnelly@lawfla.com

Ethics Update

Potential Criminal Law Implications of Filing a False Memorandum of Voting Conflict

Section 112.3143(3), Florida Statutes, prohibits a local public officer from voting in certain situations, including when the matter he or she is voting upon inures to his or her special private gain or loss, to the special private gain or loss of a principal by whom he or she is retained, or to the special private gain or loss of a relative or a business associate.  Specifically, the statute provides as follows:

No county, municipal, or other local public officer shall vote in an official capacity upon any measure which would inure to his or her special private gain or loss; which he or she knows would inure to the special private gain or loss of any principal by whom he or she is retained or to the parent organization or subsidiary of a corporate principal by which he or she is retained, other than an agency as defined in s. 112.312(2); or which he or she knows would inure to the special private gain or loss of a relative or business associate of the public officer. Such public officer shall, prior to the vote being taken, publicly state to the assembly the nature of the officer's interest in the matter from which he or she is abstaining from voting and, within 15 days after the vote occurs, disclose the nature of his or her interest as a public record in a memorandum filed with the person responsible for recording the minutes of the meeting, who shall incorporate the memorandum in the minutes.

A public official who violates Section 112.3143(3), Florida Statutes, is subject to the penalties set forth in Section 112.317, Florida Statutes, which includes imposition of a civil penalty not to exceed $10,000.   There are no criminal penalties attached to a violation of the voting conflicts statute.

However, that is not the end of the story. 

In the 2009, the Fourth District Court of Appeal affirmed the conviction of a city commissioner for two counts of official misconduct in violation of Section 838.022(1)(a), Florida Statutes, for filing falsified voting conflict forms.  Wasserstrom v. State, 21 So. 3d 55 (Fla. 4th DCA 2009).   Section 838.022(1)(a), Florida Statutes, provides that “[i]t is unlawful for a public servant, with corrupt intent to obtain a benefit for any person or to cause harm to another, to … [f]alsify, or cause another person to falsify, any official record or official document….”

With respect to this statutory provision, the Court held that, in order to establish a prima facie case, the state must establish that a defendant: (1) was a public servant; (2) acted with corrupt intent, as that term is defined in the statute; (3) acted to obtain a benefit, as that term is defined; and (4) falsified an official record or document. The Court concluded that the underlying facts supported the jury’s determination that the public officer would have benefitted from the measure under consideration and that he acted with corrupt intent when he falsely stated that his law firm would have not benefitted from the measure.

More recently, a public official in Broward County was charged with four violations of Section 839.13(1), Florida Statues, for falsifying or avoiding a record in that she failed to list her brother’s interest in a vote, from which she abstained, on her voting conflict form.  Section 839.13(1), Florida Statutes, provides as follows:

Except as provided in subsection (2), if any judge, justice, mayor, alderman, clerk, sheriff, coroner, or other public officer, or employee or agent of or contractor with a public agency, or any person whatsoever, shall steal, embezzle, alter, corruptly withdraw, falsify or avoid any record, process, charter, gift, grant, conveyance, or contract, or any paper filed in any judicial proceeding in any court of this state, or shall knowingly and willfully take off, discharge or conceal any issue, forfeited recognizance, or other forfeiture, or other paper above mentioned, or shall forge, deface, or falsify any document or instrument recorded, or filed in any court, or any registry, acknowledgment, or certificate, or shall fraudulently alter, deface, or falsify any minutes, documents, books, or any proceedings whatever of or belonging to any public office within this state; or if any person shall cause or procure any of the offenses aforesaid to be committed, or be in anywise concerned therein, the person so offending shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

In addition, the public official was charged with a violation of Section 839.13(1), Florida Statues, for falsifying the proceedings of the city commission “by uttering false statements before the Commission regarding her familial interest” and her knowledge of the financial relationship between her brother and the agency that was the subject of votes of the city commission. 

Accordingly, it is incumbent upon public officers to accurately and truthfully complete voting conflict forms required pursuant to Section 112.3143, Florida Statutes, lest they find themselves charged with serious criminal violations.

Prepared by:     Mark Herron

                                mherron@lawlfa.com

Ethics Update

The Fifth District Court of Appeal reversed an order issued by the Florida Commission on Ethics that concluded that a state senator violated Section 112.313(6), Florida Statutes, by asserting his position as a state senator to bully a deputy sheriff into permitting him access to a stadium parking lot through a barricaded roadway.  A copy of the opinion, styled Siplin v. Comm’n on Ethics, Case No. 5D09-3638 (Fla. 5th DCA Feb. 25, 2011) can be found here.

 The Fifth District held that substantial competent evidence did not support the administrative law judge’s factual findings, which were adopted by the Florida Commission on Ethics, that concluded that the state senator acted “corruptly,” which is an element of the misuse statute, Section 112.313(6).  “Corruptly” is statutorily defined as being “done with a wrongful intent and for the purpose of obtaining, or compensating or receiving compensation for, any benefit resulting from some act or omission of a public servant which is inconsistent with the proper performance of his or her public duties.”  Fla. Stat. § 112.312(9).  The Fifth District held:

 No allegation has been made that Siplin used his position in an attempt to avoid receiving or paying the traffic citation. Instead, the ethics violation is based on his allegedly using his position to bully [the deputy sheriff] into letting him access the parking lot through a barricaded route.  The Commission points to no law or ethics code that prohibited Siplin from asking to go through the barrier.  In fact, Siplin was ultimately allowed to go through the barricade not because he was “corruptly” using his official position as a state senator but because he was creating a scene by refusing to move his vehicle as instructed by law enforcement.

 

Prepared by:     Robert Telfer III

                        rtelfer@lawfla.com

Election Law Update

In Florida Elections Commission v. Davis, Case 1D09-3716 (Fla. 1st DCA September 30, 2010), the First District Court of Appeal affirmed the final order of the administrative law judge concluding that an administrative law judge having final order authority under the 2007 amendment to Section 106.25(5), Florida Statutes, has no authority to levy a penalty against a person found to have violated either Chapters 104 or 106, Florida Statutes.  (See blog post December 11, 2009).  The Davis opinion can be found here.

Citing to several provisions of the Florida statutes which authorize administrative law judges to impose penalties, the Court noted that “[t]he Legislature well knows how to confer the power to levy administrative penalties as part of the administrative law judge’s final order authority.”  Thus, the Court concluded: “The Legislature conferred no such authority on administrative law judges in the event of violations of the provisions of chapters 104 and 106. Inclusio unius est exclusio alterius.” (emphasis in text)

Prepared by:     Mark Herron

                        mherron@lawfla.com