| Date issued: 08/26/2011 | |
| Editor: Betsy Stupski |  |
Clicking the icon following the number of each case cited below will link you directly to the cited opinion. AG Advisory Opinions are accessible from the list of links.
Appellate Alert 2011-13
August 26, 2011
Eleventh Circuit Court of Appeals
State of Florida v. Department of Health and Human Services 11-11021 & 11-11067
18/12/11
The Eleventh Circuit declared the mandate to purchase health insurance unconstitutional.
The Eleventh Circuit determined that the federal government exceeded its Commerce Clause authority by requiring individuals to purchase health insurance. The Court said, “Further, the individual mandate exceeds Congress’s enumerated commerce power and is unconstitutional. This economic mandate represents a wholly novel and potentially unbounded assertion of congressional authority: the ability to compel Americans to purchase an expensive health insurance product they have elected not to buy, and to make them re-purchase that insurance product every month for their entire lives. “
11-11021 & 11-11067
 201111021.pdf
In re Diaz 10-14426
7/27/11
The Department of Revenue was not in contempt of court for pursuing child support claim after Bankruptcy court decision.
A bankruptcy petitioner sought contempt of court charges against the Department of Revenue for pursuing a child support claim after the claim had been denied in bankruptcy court. The petitioner complained that the Department had violated the automatic stay and the discharge injunction issued by the bankruptcy court. The district court affirmed a bankruptcy court order holding the Department in contempt.
The Eleventh Circuit reversed. In its analysis the Court distinguished between a debt claim that had been denied and one that had been discharged. The Court further noted that child support payments cannot be discharged. The Court also found that sovereign immunity barred the claim for violation of the automatic stay.
10-14426 11circv Diaz v FlDOR.pdf
Florida Supreme Court Whiley v. Scott SC11-592
8/16/11
The governor violated the separation of powers doctrine when he suspended rule-making.
Governor Scott signed two executive orders which effectively suspended rule-making activities for state agencies. After finding that the case raised serious constitutional questions, the Florida Supreme Court exercised its discretionary jurisdiction under a writ of quo warranto.
The Supreme Court determined that the governor exceeded his authority under the doctrine of separation of powers. The Court said, “We distinguish between the governor’s constitutional authority with respect to the provisions of the executive orders pertaining to review and oversight of rulemaking within the executive agencies under his control, and the Legislature’s lawmaking authority under article III, section 1 of the Florida Constitution. The Legislature retains the sole right to delegate rulemaking authority to agencies, and all provisions in both Executive Order 11-01 or 11-72 that operate to suspend rulemaking contrary to the APA constitute an encroachment upon a legislative function.”
SC11-592 FSCcv Whiley v Scott.doc
Fourth District Court of Appeal
Snipes v. Telli 4D10-4687
8/10/11
County charter provision imposing term limits on county commissioners did not violate the Florida Constitution.
Broward County voters passed an amendment to the Broward County charter which imposed term limits on Broward County Commissioners. Telli challenged the amendment, arguing that it conflicted with the provisions in Article VIII of the Florida Constitution that addressed constitutional officers. The circuit court struck down the amendment.
The Fourth District reversed the trial court. In its analysis the Court distinguished between county commissioners and the more carefully enumerated constitutional officers of sheriff, tax collector, property appraiser, supervisor of elections, and clerk of the court. The Court said, “Technically, all officers of the state, however minor or important, are ‘authorized by the constitution,’ because their powers flow in some way from the Florida Constitution. There is a crucial difference, however, between the offices described in sections 1(d) and 1(e). The section 1(d) officers are established with precise language; by contrast, the section 1(e) “commissioners” are described as a default option when a county charter does not provide otherwise. Section 1(d) establishes that a county government shall have certain named officers, and grants the county limited powers to change the manner of electing those officers, or to abolish an office altogether and transfer its duties to another county office. Section 1(e), on the other hand, does not unalterably establish the office of “county commissioner;” rather, that subsection provides for county commissioners only as a fallback option.”
4D10-4687 4dcacv Snipes v Telli.doc
Katzman v. Rediron Fabrication, Inc 4D11-1290
8/10/11
Witness who had financial interest in the outcome of the case was not considered a typical expert witness but was a” hybrid witness” and was required to disclose request financial information during discovery.
After an automobile accident and the initiation of a personal injury suit, the Plaintiffs’ lawyer referred the plaintiffs to Dr. Katzman for controversial outpatient surgical procedures. The Plaintiffs signed an agreement with Dr. Katzman where the Plaintiffs were to pay Dr. Katzman from the proceeds of the lawsuit. Eventually the Defendant sought discovery from Dr. Katzman regarding income from other plaintiffs who had signed similar agreements. Dr. Katzman objected as an expert witness and argued that the discovery request was overreaching. The trial court ordered Dr. Katzman to produce the requested information.
The Fourth District denied Dr. Katzman’s request for certiorari, explaining that Dr. Katzman was not strictly an expert witness but a “hybrid” witness. The Court said, “Katzman clearly qualifies as an expert and is expected to provide expert opinion testimony as a witness in this case, but Katzman is also a treating physician who has agreed to treat the patient under a letter of protection agreement. The discovery that can be obtained from such a “hybrid witness” is not limited strictly by the rule that governs discovery from typical experts retained to provide opinions at trial.”
4D11-1290 4dcacv Katzman v Rediron.doc Fifth District Court of Appeal
City of Orlando v. Pineiro 5D10-1388
8/5/11
The court used different standards for objected-to and unobjected-to improper statements to determine whether a new trial was warranted.
This case arose when a young man was struck and killed by another man in a pick-up truck who was fleeing from Orlando police. The plaintiff sued the police department for negligently engaging in a high speed chase. Eventually the jury found the City to be 55% liable. During closing arguments the Plaintiff’s counsel made a number of statements including value of life statements to which the City objected. He also made other questionable statements to which the City did not object.
On appeal the City argued that those statements to which they objected warranted a new trial. They also argued that even certain statements that they had not objected to warranted a new trial. The Court began by explaining the different standards used for objected-to improper statements and unobjected-to improper statements. The Court said, “We review a trial courts order granting or denying a motion for a new trial based on objected-to or unobjected-to improper argument for abuse of discretion… ‘If the issue of an opponents improper argument has been properly preserved by objection and motion for mistrial, the trial court should grant a new trial if the argument was ‘so highly prejudicial and inflammatory that it denied the opposing party its right to a fair trial.’… However, for an unobjected-to improper argument to support a new trial order, the unobjected-to improper argument must be ‘of such a nature as to reach into the validity of the trial itself to the extent that the verdict could not have been obtained but for such comments.’” The Court determined that the unobjected-to improper statements did not rise to the level of requiring a new trial. However the Court found that the cumulative effect of the objected-to improper statements was highly prejudicial and warranted a new trial.
5D10-1388 5dcacv Orlando v Pineiro.doc
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