Florida Supreme Court – Florida Politics

Florida Bar seeks early win in traffic ticket firm case

The Florida Bar is asking the state’s Supreme Court to give it the “W” in a case against an upstart Miami firm that’s allegedly practicing law without a license.

In its case against TIKD, The Bar is requesting for a “judgment on the pleadings,” bypassing oral arguments “when the outcome of the case rests on the court’s interpretation of the law.”

The company hires lawyers to fight people’s traffic tickets for them. If TIKD loses, it pays customers’ fines or court costs.

The Bar maintains that TIKD is in the wrong, in part because founder and CEO Chris Riley — a U.S. Navy commander-turned entrepreneur  isn’t a lawyer but his company advertises and acts like a law firm. 

“It is an undisputed material fact that (TIKD) offers legal representation to (its) customers through Florida lawyers to defend their traffic tickets,” the Bar said in a motion filed late Friday.

The company’s “advertising offers the public legal services to resolve their traffic tickets,” says The Bar, which regulates the practice of law and prosecutes the unlicensed practice of law, or UPL.

“It constitutes the unlicensed practice of law for a nonlawyer (i.e., Riley) to offer to provide legal services directly to the public,” The Bar’s motion says. “… (A) corporation owned and operated by nonlawyers (can’t) employ an attorney to give legal advice to its customers.”

TIKD’s defense has been the Uber argument: Just as the ride-booking company says it isn’t a transportation concern but a technology company, TIKD has said it’s “a technology platform,” not a law firm, on which customers pay a “fixed, pre-determined charge” to get their cases resolved.

This past Regular Session, TIKD hired Ballard PartnersBrian Ballard and Mat Forrest to get some legislative relief, but couldn’t get any traction with lawmakers.

No action on the motion had been taken as of Monday morning, court dockets show.

Supreme Court to hear medical malpractice dispute

The Florida Supreme Court on Thursday scheduled oral arguments in a medical-malpractice appeal filed by the estate of a woman who died while undergoing surgery for a tumor in her skull.

The court issued an order that set arguments for Aug. 29 in the case involving the 2009 death in Miami-Dade County of 45-year-old Maria Elena Espinosa.

The woman’s estate took the case to the Supreme Court after a divided 3rd District Court of Appeal last year upheld a circuit judge’s directed verdict for anesthesiologist Arturo Lorenzo, who evaluated Espinosa before the surgery.

The woman died on the operating table of what the appeals-court opinion said was exsanguination, which involves blood loss.

The case focused, in part, on whether Lorenzo properly considered an abnormal electrocardiogram in the evaluation. But the majority of the appeals court said Lorenzo had acted properly and that another anesthesiologist also conducted an evaluation before the surgery.

1st DCA asks Supreme Court to reconsider personal injury claims involving pollution

The 1st District Court of Appeal asked the Florida Supreme Court on Wednesday to clarify whether the high court meant to rule eight years ago that state environmental law doesn’t allow parties to recover personal injury damages arising from toxic spills.

Judge James Wolf, writing for a unanimous three-judge panel, took the high court at its word and denied a damages claim by a tow-truck driver who said he suffered acid burns while responding to a big-rig that spilled a load of batteries across a roadway.

“(H)owever, we certify a question of great public importance asking the court to clarify the matter,” Wolf wrote.

The case involved the Pollutant Discharge and Control Act, a 1970 law allowing “any person” to sue over “the … loss of any real or personal property, or … destruction of the environment and natural resources, including all living things except human beings;” and the 1983 Water Quality Assurance Act, which allows “any person to bring a cause of action … for all damages resulting from … pollution.”

In Curd v. Mosaic Fertilizer, decided in 2010, the high court said the 1970 law’s ban on personal injury damages also applied to the 1983 law.

The parties in Wednesday’s opinion, Simon’s Trucking Inc. v. Lieupo, differed on whether that portion of the Supreme Court ruling amounted to “dicta” — judicial asides that don’t speak to the dispositive issue in a case, and that don’t carry precedential value, but that might influence the outcome of a case in the future.

Personal injury wasn’t at issue in Curd, which involved fishermen suing over pollution in the waters they worked.

The high court took an expansive view of the 1983 law, ruling that it allowed “any person” to bring a cause of action for “all damages.” But applying that “except human beings” language from the 1970 law meant that Lieupo lacked ground to sue.

Lieupo’s attorneys argued that the high court couldn’t have meant it — that the holding would contradict the statute’s plain language. Indeed, Justice Ricky Polston had disagreed with his colleagues on the point.”

“We cannot, however, overlook the fact that the Curd court specifically found the 1970 definition of damages was applicable to the fishermen’s cause of action brought under the 1983 act,” Wolf wrote — especially given that the court was well aware of Polston’s objection.

“As such, we are required to apply the 1970 act’s definition of damages here, which precludes appellee’s cause of action for personal injuries,” he continued.

“However, because it is difficult to discern whether the Curd court actually intended for this definition of damages from the 1970 act to be applied to all causes of action brought under the 1983 act, we certify the following question as one of great public importance: Does the private cause of action contained in Section 376.313(3), Florida Statutes, permit recovery for personal injury?”

Major Harding: Protect our constitution from unnecessary clutter and logrolling

The week of April 16, 2018, the 37 members of the Florida Constitution Revision Commission (CRC) hold the unique power to approve or not approve what proposals will go on the 2018 ballot this November for voters to consider adding as amendments to our state’s constitution.

Given the substance of a number of the remaining proposals, and the grouping of those proposals, there are a number of concerns the Commission should consider.

First, as discussed in prior public addresses, many of the remaining proposals — irrespective of their underlying merits — do not belong in our constitution.

As then-Chief Justice [Alan] Sundberg noted in his dissent in State v. Firestone, 386 So.2d 561, 568 (Fla. 1980): “[t]he predecessor Constitution of 1885 had been repeatedly and persistently amended by inclusion of matters which did not rise to fundamental constitutional dignity. A major objective of the original Constitutional Revision Commission was to impose a more orderly and stringent process for amendment of the 1968 Constitution to curb the excesses which beset the 1885 Constitution.”

A number of the present proposals — regulating everything from naming of buildings to greyhound racing, civics lessons to vaping in public places — objectively do not rise to the level of fundamental constitutional dignity because they do not govern state government, protect fundamental rights and can be enacted through the legislative process.

The Commission must act to prevent these from being placed on the ballot and protect our constitution from unnecessary clutter.

Relatedly, the Commission’s present grouping of proposals makes the problem worse. By grouping proposals, the Commission is effectively depriving the voters of their right to choose what does and does not belong in Florida’s foundational text on a proposal-by-proposal basis. As a consequence, these groupings not only fail to curb the excesses of the constitutional amendment process, they deny the voters the ability to do so as well.

Although the Commission is not required to do so, the Commission should adhere to a single-subject requirement. All proposed amendments that come to the voters — apart from those produced through this process — must be limited to a single subject.

The Florida Supreme Court has recognized that one of the principal reasons for the existence of this requirement is “to prevent ‘logrolling,’ a practice that combines separate issues into a single proposal to secure passage of an unpopular issue.” Advisory Opinion to the Atty. Gen. re: Voluntary Universal Pre-Kindergarten Educ., 824 So. 2d 161, 165 (Fla. 2002). As discussed, logrolling is of particular concern as it relates to constitutional clutter.

Regardless of how popular an issue may be, combining proposals of constitutional concern with “ordinary law” proposals is unfair to the voters, and ultimately can result in an unnecessary and improper constitutional amendment. Voters should not be forced to consider approving proposals about which they have no interest, or worse, to consider propositions they would otherwise oppose in order to approve completely unrelated proposals that they like.

The Commission owes it to the voters to allow every proposal to rise or fall on its own respective merits.

The Commission should exercise restraint and reject proposals that detract from the basic purpose of a constitution. The Commission should exercise restraint by asking whether the proposal protects a fundamental right, and whether there is a reason why the proposal cannot be enacted by the legislature.

If the answer is no to these questions, then the Commission should vote to reject the proposal.

The Commission should also reject any attempts at logrolling and embrace a single-subject ballot scheme. The Commission should reject any proposal that groups unrelated propositions because doing so, while not unconstitutional, is nonetheless unfair to the people of Florida. We must keep our state constitution clean.

___

Major Harding is a former Chief Justice of the Florida Supreme Court.

Justices set arguments in car weapon case

The Florida Supreme Court will hear arguments June 6 in a dispute about whether a car can legally be considered a weapon.

Justices on Wednesday scheduled the hearing in an appeal by Adam Lloyd Shepard, who was convicted on a charge of manslaughter with a weapon after fatally striking Spencer Schott with a car after leaving a Jacksonville Beach bar in January 2011. The men earlier had been in an altercation in the bar. Under state law, the use of a weapon bumped up the manslaughter charge from a second-degree felony to a first-degree felony, carrying a longer prison sentence.

After a jury found him guilty of manslaughter, Shepard challenged the reclassification of the crime to a first-degree felony based on the car being considered a “weapon.”

While the 1st District Court of Appeal rejected Shepard’s argument, it acknowledged that its conclusion differed from a ruling in a separate case in the 2nd District Court of Appeal. Shepard appealed the issue to the Supreme Court, which said in January that it would take up the dispute.

Traffic ticket firm asks justices to reject Bar case

A Miami-Dade County firm that helps motorists fight traffic tickets asked the state Supreme Court on Monday to dismiss a case alleging it has violated a ban on practicing law without a license.

The Florida Bar in January filed a petition requesting that the Supreme Court issue an injunction against TIKD Services LLC. But in a 19-page document filed Monday, TIKD disputed arguments that it practices law without a license and asked the Supreme Court for a summary-judgment ruling and a dismissal of the Bar’s claims.

TIKD, which was created in 2016, operates an online service in which motorists can upload pictures of tickets, according to the document filed at the Supreme Court. TIKD performs a statistical analysis after receiving tickets and determines whether to provide its services to motorists. If it accepts a ticket, TIKD charges a fee and pays an attorney to represent the motorist.

TIKD also pays fines or court costs if tickets are not dismissed, the document said. “This is not a complex case,” TIKD attorneys Christopher Kise and Joshua Hawkes wrote.

“The undisputed facts establish respondents (TIKD and the firm’s founder) do not engage in any acts constituting the unauthorized practice of law, and they do not employ or control the licensed, independent Florida lawyers who provide legal advice and representation to TIKD customers.”

But in the January petition, the Bar argued that TIKD advertises “in a fashion which may lead a reasonable lay person to believe” the firm is qualified to provide legal services.

“Respondents either personally or through advertisement offer traffic ticket defense legal services while suggesting that their services are the equivalent of or a substitute for the services of an attorney,” the petition said.

Justices weigh police ‘stand your ground’ defense

Attorney General Pam Bondi’s office this week urged the Florida Supreme Court to overturn a ruling that allowed a police officer to use the state’s “stand your ground” self-defense law after being charged with manslaughter in an on-duty shooting.

Bondi’s office, in a 22-page brief filed Monday, argued that Broward County sheriff’s deputy Peter Peraza was not legally entitled to claim immunity under “stand your ground” in the 2013 shooting death of Jermaine McBean. Instead, the brief argued, officers can seek a more-limited type of immunity under another part of state law.

The Supreme Court agreed in February to take up the case, after Bondi’s office appealed a ruling by the 4th District Court of Appeal. That ruling upheld a circuit judge’s decision that Peraza was entitled to immunity from prosecution under “stand your ground” and that his use of force was justifiable.

The legal battle stems from an incident in which Peraza received a report of a man walking down a street openly carrying a gun. Peraza and another officer pursued the man and ordered him to stop and drop the weapon, the appeals-court ruling said. The man did not drop the weapon, leading Peraza to fatally shoot him. The weapon turned out to be an air rifle.

Peraza was indicted on a charge of manslaughter with a firearm but successfully used a “stand your ground” defense. Under the law, a circuit judge held a pre-trial evidentiary hearing before siding with the deputy’s arguments.

“The circuit court found that the officer’s account of the incident was consistent with the other credible witnesses’ testimony and the physical evidence,” the appeals court ruling said, summarizing the decision. “The (circuit) court then found, by the greater weight of the evidence, that the man (McBean) ignored repeated warnings to stop and drop the weapon, turned towards the officers, and pointed his weapon at the officers, causing the officer (Peraza) to be in fear for his life and the lives of others, prompting the officer to shoot at the man, resulting in the man’s death.”

The controversial “stand your ground” law says people are justified in using deadly force and do not have a “duty to retreat” if they believe it is necessary to prevent death or great bodily harm. When the defense is successfully raised in pre-trial hearings, defendants are granted immunity from prosecution.

But in the brief filed Monday, Bondi’s office argued that police incidents are subject to another part of state law that can provide what is known as “qualified” immunity. Under such a scenario, the officer would not receive a pre-trial hearing that could lead to dismissal but would be able to raise self-defense arguments at trial, according to the appeals court ruling.

Bondi’s office said police officers have never had a duty to retreat and that the “stand your ground” law granted the “average citizen the right to stand his or her ground.”

“It makes no sense to apply this statute to officers who have always had the right to stand their ground,” the brief said. “Thus, permitting an officer, to elect an absolute immunity over qualified immunity bypasses the statute specifically designed for this scenario and renders (the law dealing with qualified immunity) meaningless.”

But Peraza’s attorneys, in a document filed at the Supreme Court in January, said the laws “coexist.” They wrote that a police officer could raise a “stand your ground” defense in a pre-trial hearing and, if unsuccessful, make arguments under the qualified-immunity law at trial.

“This case needs to be examined through the practical realities of policing,” Peraza’s attorneys wrote. “To follow the petitioner’s (attorney general’s) argument would allow an average citizen to assert immunity whereas a law enforcement officer who took an oath to uphold the law, to serve and protect, and whose duty entails running toward danger rather than from it, would not be able to avail him or herself of such a defense.”

Supreme Court to decide if car can be weapon

In a case stemming from the death of a man after an altercation in a bar, Attorney General Pam Bondi’s office Friday urged the Florida Supreme Court to uphold a ruling that a car can legally be considered a weapon.

The Supreme Court said in January that it would take up an appeal by Adam Lloyd Shepard, who was convicted on a charge of manslaughter with a weapon after fatally striking Spencer Schott with a car after leaving a Jacksonville Beach bar in January 2011. The men were University of Kansas basketball fans, but as their team lost a game, “the amicable relationship between Schott and Shepard began to deteriorate,” according to a brief by Shepard’s attorneys.

Under state law, the use of a weapon bumped up the manslaughter charge from a second-degree felony to a first-degree felony, carrying a longer prison sentence. After a jury found him guilty of manslaughter, Shepard challenged the reclassification of the crime to a first-degree felony based on the car being considered a “weapon.”

While the 1st District Court of Appeal rejected Shepard’s argument, it acknowledged that its conclusion differed from a ruling in a separate case in the 2nd District Court of Appeal. Shepard took the issue to the Supreme Court, but lawyers in Bondi’s office filed a 43-page brief Friday that contended a vehicle can be a weapon.

“In this case, petitioner (Shepard) used the car against the victim to attack or defeat him,” the brief said. “Petitioner specifically drove the car into the victim in a manner that was likely to cause death or great bodily harm. Moreover, although a car may not be a traditional weapon, it has become a modern weapon of choice for a variety of criminals, including those who use it to try to strike people or police officers, and terrorists who use cars as a bomb or a weapon of mass destruction to mow down pedestrians on a sidewalk.”

But in a brief filed last month, Shepard’s attorneys argued that vehicles are not considered weapons under a law that allows reclassification of felonies. The brief said the law does not define “weapon” but that previous Supreme Court opinions have made clear that the “reclassification statute only applies to instruments commonly understood as having the purpose of inflicting death or serious bodily injury to others.”

“Under (guidelines from those opinions), Shepard’s vehicle could not be considered a weapon because the commonly recognized purpose of a vehicle is for transportation, not as an instrument of combat,” Shepard’s attorneys wrote. “Therefore, the trial court erred in reclassifying Shepard’s manslaughter conviction to a first-degree felony.”

The Supreme Court has not said when it will hear oral arguments in the case, which also involves arguments about whether Shepard’s car was improperly seized without a warrant. Shepard, now 37, is an inmate at Cross City Correctional Institution.

Republished with permission of the News Service of Florida.

Charles Canady chosen to serve as Chief Justice

Florida Supreme Court Justice Charles Canady will become chief justice July 1, the second time he has led the state courts system.

Canady, 63, was elected by other justices to serve a two-year term as chief justice, succeeding Chief Justice Jorge Labarga, the court announced Thursday.

Labarga will remain on the court.

Canady, a former state legislator and congressman, was appointed to the Supreme Court in 2008 by then-Gov. Charlie Crist.

He also served as chief justice from 2010 to 2012. Canady, widely viewed as part of a three-justice conservative minority on the court, will be at the helm during a time of change.

Longtime justices Barbara Pariente, R. Fred Lewis and Peggy Quince — all part of a more-liberal bloc — will step down in January because of a mandatory retirement age, leading to turnover of nearly half of the seven-member court.

Gary Farmer’s moment

Parkland High School is not in Gary Farmer’s state Senate district.

No children from Marjory Stoneman Douglas High School live in his district.

But …

Farmer lived in Parkland for a decade and, as degrees of separation would have it, his family is closely connected to several of those who were directly and tragically impacted by last week’s shooting.

So why could this be his moment?

Recalling his heated campaign against former state Rep. Jim Waldman, I am reminded that the race turned on who would be most able and willing to stand up to the National Rifle Association. Yes, there was the tit-for-tat back-and-forth over what grade Waldman actually got from the pro-gun lobby, but in the end, his two pro-NRA votes ultimately sunk him.

And Farmer owned it big.

Most everyone I have spoken with says that, in hindsight, the race turned on Farmer’s unbending and unyielding attack on the pro-gun crowd. In fact, many have forgotten that Farmer didn’t just beat Waldman, he pushed him into third place behind a (very) poorly funded Gwyn Clarke-Reed and he did so on his commitment to take on the NRA.

In addition to a longtime gun control advocate — including his push to end the sale of military-style assault weapons in Florida — Farmer has also consistently fought for consumer rights, such as creating new laws to protect subscribers wrongfully denied coverage by their HMO’s; litigating the “Butterfly Ballot” and absentee voting cases to the Florida Supreme Court after the 2000 election; and representing patients, consumers and employees wronged by various corporations, hospitals and insurance companies’ deceptive trade practices.

According to a 2017 Sun-Sentinel profile, Farmer — named a Florida Super Lawyer by Super Lawyer magazine — was lead counsel in some of the nation’s largest whistleblower lawsuits over off-label marketing of pharmaceutical drugs (Eli Lilly, AstraZeneca and Johnson & Johnson). From 2012-2013, he served as President of the Florida Justice Association (FJA), the state’s largest and most influential consumer protection organization.

But gun control has been Farmer’s most high-profile issue as of late; he filed a pair of bills in 2017 to tighten background checks for gun purchases in the wake of the Fort Lauderdale — Hollywood International Airport shooting, which killed five people and injured six. The airport in Broward County is part of Farmer’s Senate District 34.

So what does the Parkland shooting mean for Team Farmer?

From this vantage point, it looks like his moment has arrived. His voice will be a loud one and his role as a future leader within his caucus may be largely defined by his impact in the final weeks of Session, especially as to how things shake out on guns and the restrictions thereof.

When does someone run on an issue with a commitment to impact real change and then that issue becomes THE defining issue of the year? Well, this is one such time.

That is why I believe this is Farmer’s moment and we should all be watching closely.

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