Florida Law

 

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Aspects of Same-Sex Marriage

October 12, 2017 by pgd1

In the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission, the issue before the Supreme Court is whether a Christian baker has the right to refuse to create a wedding cake for two men.

Since the Supreme Court of the United States has recognized same-sex marriage, the nuances of this new constitutional protection need to be worked out.  As a family law attorney in Clearwater, Florida, dealing with all types of divorces, including same-sex marriage divorces, I welcome the Supreme Court’s clarification.

In the case before the Court, the couple says Colorado Civil Rights Laws requires businesses to serve gays and straights alike, while Jack Phillips, the baker, complains that this rule forces him to endorse what he believes to be sinful behavior and to express a message he reviles.

If the Court finds for Mr. Phillips, calligraphers, florists, photographers, and tailors who reject gay marriage, may earn a license to discriminate as well.1

In an opinion written in 2015 extending constitutional protections to same-sex marriage, Justice Anthony Kennedy wrote that “Those who adhere to religious doctrines, may continue to advocate with upmost, sincere conviction that, by divine precepts, same-sex marriage should not be condoned,” and they are protected in this mission by the first amendment.

by Patrick Gaffney

by Patrick Gaffney


1 This blog was taken from “Anthony Kennedy’s Camelot”.  The Economist.  September 30th, 2017.

The Art of Drafting

October 5, 2017 by pgd1

One of the aspects of the practice of family law that gets little attention is the drafting of legal documents. We know that most family law disputes are resolved by agreement.

Some of the most important work that lawyers do comes in the form of drafting.  It often happens that parties reach an agreement in principal. However, during the drafting phase, details emerge that were never discussed.  As the saying goes, the devil is in the details.

Given the importance of words, it is not unusual for lawyers to disagree about the wording of an agreement.  A recent case out of the state of Maine turned on how the court would interpret a statute.  The interpretation turned on the placement of a comma.  The case is illustrative of the type of problems that can arise from writings drafted lawyers—whether it is a statute or an agreement.

It all came down to a missing comma, and not just any one.  And it’s reignited a longstanding debate over whether the punctuation is necessary.  A federal appeals court decided to keep alive a lawsuit by dairy drivers seeking more than $10 million in an overtime pay dispute.

It concerned Maine’s overtime law, which doesn’t apply to the “canning, processing, preserving, freezing, drying, marketing, storing, packing for shipment or distribution of” foods.

There’s no Oxford, or serial, comma in the “packing for shipment or distribution” part. The drivers said the words referred to the single activity of packing, which the drivers don’t do. The defendant, Oakhurst Dairy, said the words referenced two different activities and drivers fall within the exemption.

Circuit Judge David Barron wrote: “For want of a comma, we have this case.” The court sided with the drivers.

The Associated Press Stylebook advises against the use of the Oxford comma, except when it’s needed for clarity.  In this case, someone following AP’s guidance would include a comma if the packing and distribution were intended to be separate activities.

Other authorities are more enthusiastic about the serial comma — notably Oxford University Press, from which the mark draws its popular name.  The Oxford style guide, published as New Hart’s Rules, states that it is Oxford style “to retain or impose this last comma consistently.”1

Thus, the placement of a comma made a ten million dollar difference in result.  This case emphasizes the importance of the correct use of language and grammar.

by Patrick Gaffney

by Patrick Gaffney


1 Portions of this blog were taken from Whittle, Patrick.  Associated Press.  March 17, 2017.  Retrieved from:  https://www.usnews.com/news/best-states/maine/articles/2017-03-17/court-ruling-hinging-on-comma-ignites-grammarian-style-war

Florida Legislature Seeks Term Limits on Judges

April 20, 2017 by pgd1

The Florida house has passed a constitutional amendment that would ask voters to impose term limits on appellate judges and state Supreme Court justices.  The state Senate has yet to act on this amendment and it has been suggested that the Senate should reject this measure as a blatant assault on the courts.1

This measure would be the first of its kind in the country to force appellate judges and justices out of office after 12 years.  For judicial term limits to become part of the Florida constitution, the amendment would have to pass the Senate and then win at least 60% of the vote in the November 2018 general election.

There is no doubt that this is a partisan attack on a nonpartisan branch of government, and the rhetoric about state judges serving for life glosses over the truth.  Long term appointments bring stability, consistency, and institutional knowledge to the highest levels of the courts.

Recent state court rulings have invalidated laws covering Worker’s Compensation, abortion rights, capital punishment, and redistricting.

The legislature is wanting to get even.  However the Florida bar, business interests, and lawyers on the right and left oppose term limits for appellate judges and justices.  They convincingly argue that the brightest trial judges and lawyers will not seek appointments to the appellate bench if they could be pushed out before age 60 and have to start over with no clients or law practice.  There would also be a constant turning over of appellate judges because of term limits.  This makes no sense.

by Patrick Gaffney

by Patrick Gaffney


1 This blog contains excerpts from an editorial of the Tampa Bay Times republished by the Miami Herald on April 5, 2017.

Retired Judges

November 17, 2016 by pgd1

From time to time, I will appear to a scheduled hearing expecting to see the judge assigned to that section of court, and, instead, a retired judge appears.

Florida’s constitution permits the assignment of retired judges.  However, it specifies that these assignments are to be temporary.  In a 2003 opinion, the state Supreme Court upheld the constitutionality of the senior judge system.

However, in a partial dissent, Justice R. Fred Lewis wrote, “In reaching its decision, the majority must engage in a ‘judicial wink’ as it considers the true definition of ‘temporary’.”

In recent times, courts have increasingly relied on senior judges to deal with the backlog of foreclosure cases stemming from the 2008 housing crisis.1

In order to become a senior judge, the Chief Justice of the Florida Supreme Court must approve an application for senior status. It is required that the proposed senior judge must not have been defeated for re-election, nor failed to win a merit retention vote.

Attorney Matt Weidner has a problem with the system of utilization of senior judges.2  Generally, judges are prohibited from serving after age seventy. Yet, many retired judges serve beyond that age. Also, the constitution requires that judges live “in the territorial jurisdiction of the court”.   However, senior judges often live in circuits other than where they work.

The utilization of senior judges raises interesting questions. The use of senior judges is indicative of a larger problem—an underfunded judiciary.  The Legislature has turned down numerous requests to fund new courts.

by Patrick Gaffney

by Patrick Gaffney


1 Sullivan, Dan.  “Widespread use of senior judges questioned.”  October 28, 2016.  Retrieved from:  http://www.tampabay.com/news/courts/widespread-use-of-senior-judges-in-foreclosure-cases-questioned/2300416

2 Id.

Why We Elect Judges

November 10, 2016 by pgd1

Recently an altercation occurred outside the Jan Platt Library in South Tampa.  Citizens were present to cast their early votes.1

The altercation occurred between Melissa Polo’s campaign consultant and Gary Dolgin’s wife.  Polo and Dolgin are candidates for the same circuit judge seat in Hillsborough County.

Dolgin is reported to have stated that his wife was verbally assaulted.  Polo says the exchange was about an earlier inappropriate verbal attack on her.

In a separate incident Dolgin reports that his 81-year-old mother was treated with a lack of respect by Polo standing close listening in as she spoke to voters.  Polo says she was within her rights in a public space because the elder Mrs. Dolgin has been heard invoking political parties in making inappropriate insinuations.  This would all be comical if it were not true.

Because judges are supposed to be impartial and dignified, the rules for running are different.  Candidates do not generally talk issues, tout political parties or badmouth each other. In Florida, only trial judges are elected. Appealate judges and Supreme Court justices are appointed by the governor from a list provided by a commission; they retain their jobs by receiving a majority of yes votes in an uncompetitive election.

Despite the nastiness of some political campaigns, it has been suggested that we should keep judicial elections for the following reasons:2

First, there is no evidence that elections cause voters to view judicial institutions as less legitimate.

Second, there is no difference in the quality of judges who emerge from elections as opposed to appointments.

Lastly, unlike the merit commission process most frequently offered as an alternative –elections are at least transparent processes open to the public.

Let’s not lose sight of the fact that politics is involved in the appointment process as well. Governor Scott has come under fire for passing over qualified black candidates in favor of politically connected candidates. It has also been suggested that the Governor is biased in favor of prosecutors, and that the only way a public defender can become a judge is to get elected.3

This is why we elect judges. Those of us that work in the system accept things we cannot change.  We accept the fact that politics is involved in electing and appointing judges. We also accept the fact that judges are subject to political pressure in the decisions they make. The best judges don’t yield to this pressure.

by Patrick Gaffney

by Patrick Gaffney


1 Carlton, Sue. “Even quiet judicial races can turn ugly.” November 4, 2016.  Retrieved from:  http://www.tampabay.com/news/politics/elections/carlton-even-a-judge-election-gets-ugly-say-it-aint-so/2301290

2 Bonneau, Chris W. “Why we should keep judicial elections.  May 26, 2011.  Retrieved from:  https://www.washingtonpost.com/opinions/why-we-should-keep-judicial-elections/2011/05/26/AGt08HCH_story.html

3 Mayo, Michael “The robes are black, but Gov. Rick Scott’s judicial appointments are mostly white.” April 25, 2016 Retrieved from:  sun-sentinel.com

NO ALIMONY REFORM THIS TERM

April 21, 2016 by pgd1

Governor Rick Scott recently vetoed a proposed major overhaul of alimony law.1  The law would have also allowed for a premise of equal time-sharing of child custody matters.  Senator Tom Lee of Brandon expressed his disappointment.  Representative Ritch Workman said that the decision to merge alimony and child custody provisions in one bill was, in hindsight, the wrong strategy.  Governor Scott had this to say:

“As a husband, father and grandfather, I understand the importance of family and the sensitivity and passion that comes with the subject of family law.  As such, we should be judicious and carefully consider the long-term and real-life repercussions on Florida families.”

He said he was troubled by a provision in the bill that would require judges to begin divorce proceedings with a premise that both parents are entitled to approximately equal time with their children.  The Governor grew up in Illinois.  His parents were divorced when he was a baby.  He recently revealed that his daughter was going through a divorce.

Robert Doyel, a retired circuit judge in Polk County had this to say:

“. . . There are all kinds of practical implications that the theoretical idea of 50-50 custody just doesn’t take into account.”

It would appear that alimony reform would have happened if it were not tied to the premise of 50-50 time-sharing.  We shall see if in the future alimony and child time-sharing issues will be separated in proposed legislation.

by Patrick Gaffney

by Patrick Gaffney


1 Bousquet, S. “Child custody seals veto.”  Tampa Bay Times.  April 16, 2016.

MERRICK GARLAND’S PATH TO THE SUPREME COURT

April 1, 2016 by pgd1

It is a curious fact that what occurs in the Supreme Court of the United States affects the private practice of family law in Pinellas County, Florida.  This became clear last year when the court legalized same-sex marriage throughout the country.

With the untimely death of Justice Antonin Scalia, President Obama has nominated Merrick Garland to the Supreme Court.  This has caused both politicians and political pundits to percolate.  Republican senators have refused to hold a hearing on Garland’s nomination.  “Garland, now chief judge of the federal appeals court in Washington . . . has deftly navigated the capital’s high-powered legal circles for decades.1

From his days in high school, Garland has accumulated friends and seemingly made few enemies.  Yet, even someone with the résumé of Merrick Garland has difficulty in the current political climate of Washington.

During Chief Justice John Roberts’ confirmation proceedings, he uttered the following famous/infamous lines:

Judges are like umpires.  Umpires don’t make rules, they apply them.  The role of an umpire and a judge is critical.  They make sure everybody plays by the rules.  But it is a limited role.  No one ever went to a ballgame to see the umpire . . . I will remember that it’s my job to call balls and strikes and not to pitch or bat.2 

One could argue that Justice Roberts has done more than call balls and strikes.  The Supreme Court has had the final word on certain politically volatile issues.   It might be remembered that Justice Roberts served as the swing vote in the 5-4 ruling that upheld President Obama’s healthcare law.  We also remember the Supreme Court’s role in partisan politics in the 2000 Bush v. Gore decision.  Therefore, the nomination of Merrick Garland to the Supreme Court is no small matter.

by Patrick Gaffney

by Patrick Gaffney


1 March 27, 2016. “Garland is a deft navigator of capital legal circles” New York Times in the Tampa Bay Times.

2 Cilliza, C. June 28, 2012. “John Roberts:  umpire” The Washington Post.

SENATOR TOM LEE’S JOURNEY OF DIVORCE REFORM

March 24, 2016 by pgd1

In a recent editorial, the Tampa Bay Times suggested that Governor Rick Scott should veto the legislature’s latest attempt to overhaul Florida’s divorce laws.  The newspaper criticized the legislation in the following respects:  with regard to alimony, the proposed law would allow alimony agreements to be renegotiated if the recipient’s income rises by 10%.  This trigger, according to the paper, is far too low for spouses whose primary work had been child rearing.  With regard to child custody rules, the paper disagreed with the proposed laws’ premise that divorced parents should spend equal amounts of time parenting their children.1

As the editorial notes, issues involving alimony and child custody have been around in the legislature for more than a decade.  In 2005, then Senate President, Tom Lee, R-Brandon, directed that an amendment be added to a family court bill to require judge’s to provide equal contact with both parents when it is in the best interest of the child.  The effort failed.

Back in 2013, the Tampa Bay Times noted that Senator Lee was then locked in a nearly two-year court dispute with his ex-wife to gain additional time with his children, as well as to lower his child support payments.2  The article quotes Attorney Thomas Duggar of Tallahassee as stating that “[Senator Lee] [is] . . .very much an emotional stakeholder in this issue.”

Senator Lee’s journey to alimony reform began in 1992 when he married Amy Carey.  They divorced in 2003, two years after the birth of their son.  Lee has since remarried.  The article details Senator Lee’s original child support and timesharing arrangement and how it was modified in 2011 and in 2013.

It is interesting to reflect upon how the individual journey of one man has led to the currently proposed divorce law changes.

by Patrick Gaffney

by Patrick Gaffney


1 Editorial.  March 11, 2016.  “Editorial:  Scott should veto alimony changes”  Tampa Bay Times.  Retrieved from:  http://www.tampabay.com.

2 Varian, B. and McGrory, K. April 19, 2013.  “State Senator Tom Lee takes on alimony reform” Tampa Bay Times.  Retrieved from:  http://www.tampabay.com.

THE SPHINX

February 11, 2016 by pgd1

According to Adam Liptak, later this month Justice Clarence Thomas of the United States Supreme Court will have gone 10 years without asking a question from the bench.  It has been 45 years since any other member of the Court went even a single term without asking a question.1  I have always considered an attorney’s skill in answering an appellate judge’s questions an essential ingredient of appellate advocacy.  Justice Thomas thinks differently.

“I think it is unnecessary in deciding cases to ask many questions, and I don’t think it’s helpful” Justice Thomas said in 2013.  “I think we should listen to lawyers who are arguing their cases, and I think we should allow the advocates to advocate.”

Have the justices gone too far in interrupting one another and spraying lawyers with questions that seldom get full and considered answers?

“Quite often the judges are debating among themselves and just using the lawyers as a backboard” Chief Justice Roberts said in 2008.

As Liptak points out, Justice Thomas has a distinctive legal philosophy entirely different from any other justice.  He has taken a textualist approach, seeking to uphold what he sees as the original meaning of the U.S. Constitution and statutes.2

His memoir makes for interesting reading.  He considered entering the priesthood and attended seminary for one year.  Also, he graduated from Yale Law School, but considered this was a mistake, as he believed potential employers assumed he obtained his degree because of affirmative action policies.3  I had the privilege of meeting Justice Thomas when I was sworn into the Supreme Court of the United States.  What struck me was how personable he was to me and the other lawyers in my group.

by Patrick Gaffney

by Patrick Gaffney


1 Liptak, A.  February 1, 2016.  “It’s been 10 years.  Would Clarence Thomas like to add anything?”  The New York Times.  Retrieved from www.nytimes.com.

2 Wikipedia.  Clarence Thomas.

3 Thomas, Clarence.  My Grandfather’s Son:  A Memoir.  Harper.  2007.  Print.

APPELLATE JUDGES HIRE LOBBYIST

January 7, 2016 by pgd1

There is currently pending in both houses of the legislature a bill that would impose term limits on Florida’s appellate judges.  In response, Florida’s appellate judges have hired a lobbyist.  The lobbyist who they hired is a controversial figure, former appellate judge Paul Hawkes.  Hawkes resigned as an appellate judge in 2011 to avoid a trial and possible removal from office.1

What is also interesting is that Hawkes is being paid $30,000 from The Florida Bar.  The Florida Bar is funded by dues paid by Florida lawyers.

It turns out that Paul Hawkes is personally and professionally close to Representative Richard Corcoran, Republican, Land O’Lakes, the incoming house speaker.  Corcoran supports limiting appellate court judges to 12 years on the bench.  “Richard is my absolute best friend”, Hawkes is reported to have said.

Many questions are raised by the appellate court judges hiring a lobbyist.  They include the following:

Should the dues paid by Florida lawyers be utilized to defeat term limits for Florida appellate judges?

Is Paul Hawkes an appropriate choice as a lobbyist?

by Patrick Gaffney

by Patrick Gaffney


1 Bousquet, Steve.  Ex-judge lobbies against limits.   Tampa Bay Times.  Sunday, January 3, 2016.

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