Office of Attorney General Pam Bondi
Appellate Alert
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Date issued: 06/18/2013
Editor: Betsy Stupski
Clicking the icon following the number of each case cited below will link you directly to the cited opinion. In addition, full texts of recent slip opinions are available by clicking "VIEW" at the top of your screen, then "SLIP OPINIONS." AGOs are available in the separate AGO database.
Appellate Alert 2013-8
June 18, 2013
United States Supreme Court
Arizona v. Inter Tribal Council of Arizona 12-71
6/17/13
The National Voter Registration Act (NVRA) requires all fifty states to use a uniform federal form to register voters for federal elections. The form was developed by the Election Assistance Commission and does not require proof of citizenship. It only requires potential voters to aver that they are citizens. In 2004 Arizona passed a law that required individuals registering to vote to show proof of citizenship. Several citizens groups challenged the Arizona law, arguing that it was preempted by the NVRA. Arizona filed a motion for summary judgment which was granted by the trial court and affirmed only in part by the Ninth Circuit.
The question before the United States Supreme Court was “ whether the federal statutory requirement that States “accept and use” the Federal Form pre-empts Arizona’s state-law requirement that officials ‘reject’ the application of a prospective voter who submits a completed Federal Form unaccompanied by documentary evidence of citizenship.” The Court found that the Arizona law was preempted by the NVRA but that Arizona could request that the Election Assistance Commission include the Arizona requirement as a state specific instruction and, if need be, seek judicial review of the Commission’s final decision.
12-71
Maracich v. Spears SC 12-25
6/17/13
The use of personal information obtained from the South Carolina DMV to solicit clients in a lawsuit was a violation of the Driver Privacy Protection Act.
A law firm in South Carolina made a public records request to obtain thousands of names from the South Carolina DMV in order to solicit clients for a class action against car dealerships. Some South Carolina residents sued for a violation of the federal Driver’s Privacy Protection Act (DPPA). The Defendants moved to dismiss, arguing that the information was properly released under an enumerated exception in the DPPA which permitted disclosure for use in connection with a legal proceeding. The District Court granted the motion to dismiss finding that the letters sent by the law firm were not solicitations. Although it found that the letters were solicitations, the Fourth Circuit still affirmed saying that the release of information qualified under the exception.
The Supreme Court reversed saying that the solicitation of clients was not a permissible purpose under the litigation exception of the DPPA.
SC 12-25
Florida Supreme Court
In re: Standard Jury Instructions in Civil Cases SC12-1818
5/23/13
The Florida Supreme Court approved new civil jury instructions regarding the roles of plaintiff and defendant, read back of testimony, and “inapplicable” instructions.
The Florida Supreme Court approved amendments to Civil Jury Instructions 201.2 regarding the introduction of participants and their roles, 700 regarding closing instructions and 801.2 regarding read-back of testimony. The amendments in Instruction 201.2 explain the role of the plaintiff and defendant and also direct counsel to introduce their clients. The amendments also account for pro se parties. The amendment for Instruction 700 deletes the following language: “After you have decided what the facts are, you may find that some instructions do not apply. In that case, follow the instructions that do apply and use them together with the facts to reach your verdict.” Instruction 801.2 is amended to restrict a judge from telling a jury that they are prohibited from requesting a read-back of testimony.
SC12-1818
First District Court of Appeal
Florida House of Representatives v. Romo 1D12-5280
5/22/13
The Court used a “functionality” test in determining that legislators could not be deposed regarding reapportionment decisions.
Plaintiffs filed an action to challenge the constitutionality of the Florida Legislature’s reapportionment plan. They argued that it impermissibly favored Republicans and incumbents. During discovery the Plaintiffs sought to depose the Senate Majority Leader and some members of the legislative staff. They also sought to discover unfiled draft reapportionment plan maps. The Legislature then filed a motion for protective order which was granted in part and denied in part by the trial court. The trial court essentially said that the Legislature would be required to produce “objective” information and not be required to produce “subjective” information. In response the Legislature filed a petition with the First District.
The First District rejected the trial court’s analysis and quashed the order. The First District instead applied a “functionality” test. The Court said, “…the legislative privilege broadly protects legislators and legislative staff members from being compelled to testify about any matter that is “an essential part of the legislative process” or pertains to the performance of “a legitimate legislative function.”
1D12-5280
Poston v. Wiggins 1D12-51
5/17/13
The court found that post accident records of the Defendant were not relevant but her pharmacy records at the time of the accident were relevant.
Plaintiffs sued Defendant in an automobile negligence suit. Defendant did not counterclaim or claim injury. During discovery Plaintiffs asked Defendant to produce her pharmacy records for one year prior to the accident and also her medical records from the time of the accident to the present. The Defendant objected but the trial court overruled her objections.
The First District granted the Defendant’s petition for certiorari on her objections to the production of her post accident medical records but denied the petition regarding her pharmacy records. The court found that the pharmacy records were potentially relevant and that the Defendant did not demonstrate irreparable harm. The court, however, found that the post accident records were not relevant and were protected by the privacy provision of the Florida Constitution.
1D12-51
Second District Court of Appeal
Seminole Tribe of Florida v Hendry County, Florida 2D12-2307
6/12/13
The procedures in the Florida Power Plant Siting Act did not preempt the provisions in Chapter 163, Florida Statutes.
The Seminole Tribe filed suit over the rezoning of land adjacent to tribal land. The Tribe knew from informal channels that the land was being rezoned to build a power plant although no application for a power plant had yet been submitted. They argued that the rezoning application was inconsistent with the Hendry County comprehensive plan and, therefore, violated section 163.3194, Florida Statutes. The Defendants moved to dismiss, arguing that chapter 163 was preempted in this case by chapter 403 (Florida Power Plant Siting Act) which governs the applications to build power plants. The trial court granted the dismissal finding that the procedures set forth in chapter 163 were preempted or superseded by the Florida Power Plant Siting Act.
The Second District reversed saying, “In conclusion, based on the statutory language discussed above, there is no question that the PPSA procedures would have applied in this case if Florida Power had requested rezoning of the land after filing a PPSA application—in that case, the PPSA would have preempted a challenge under section 163.3215. But that is not what happened here. McDaniel strategically applied for rezoning before any application had ever been filed under the PPSA. In fact, no such application has yet been filed. Hence, even though the trial court correctly noted that the PPSA is a "centrally coordinated, one-stop licensing process," in the factual context of this case, the trial court was incorrect in its assessment that preemption could therefore bar a section 163.3215 challenge.”
2D12-2307
Third District Court of Appeal
Hernandez v. Reemployment Assistance Appeals Commission 3D12-1322
5/29/13
Plaintiff was entitled to unemployment benefits because he was not dismissed for deliberate misconduct.
The Plaintiff, an auto mechanic, received warnings for failures and non-completion of jobs. Eventually he was terminated. He then applied for unemployment benefits. A referee determined that he was not eligible for benefits and the Reemployment Assistance Appeals Commission affirmed the referee’s decision. The Plaintiff appealed. On appeal the Commission argued that Hernandez had been discharged for misconduct.
The Third District rejected the Commission’s argument. The Court found that the Plaintiff’s failures at work were due to poor judgment, ordinary negligence and inattention and did not amount to deliberate misconduct. The Court reversed and remanded the order denying benefits.
3D12-1322
Fourth District Court of Appeal
City of Fort Lauderdale v. Wang 4D12-93
6/12/13
The evidence that Plaintiff offered in his summary judgment motion did not support the trial court’s grant of the motion.
Wang, an artist who sold his art on the street, challenged three Fort Lauderdale ordinances which prevented him from selling in certain areas. His challenge was based on the First Amendment. After filing his lawsuit, Wang filed a motion for summary judgment which was granted by the trial court.
The Fourth District reversed ,finding that Wang failed to present any evidence that the ordinances prevented access to reasonable alternative channels of communication. The Court said, “Wang premised his summary judgment argument entirely on the submission of a zoning map and language in the ordinances. He submitted no summary judgment evidence supporting the trial court’s decision ‘that application of the ordinances does not leave open ample alternative channels of communication.’”
4D12-93