Monday, August 31, 2015

Military & Veterans Affairs Committee: Odd Laws Governing the Military

By Robert Stines

When I was shipped off to Fort Jackson for Army basic training in 2007, one of the first lessons I learned was that military members are governed by a different set of laws ― The Uniform Code of Military Justice (UCMJ). Under the UCMJ, soldiers can be charged, tried, and convicted of a range of crimes, including common-law crimes such as arson and military-specific crimes such as desertion. It is also possible for a military member to be convicted in both state and military court for the same offense (no double jeopardy). My battle buddies and I were surprised to learn that the UCMJ had some odd laws. One odd law governed intimacy with my wife (I will not discuss that here). The intimacy law has since changed, but there are some other odd laws that still stand.


There must be some historical reason why the military decided dueling was an issue that had to be dealt with under the UCMJ. The UCMJ defines dueling as: (a) the accused fought another person with deadly weapons; (b) the combat was for private reasons; and (c) the combat was by prior agreement. The military took this issue so seriously that it decided the maximum punishment should be a dishonorable discharge, forfeiture of all pay and allowances, and confinement for one year.

Drinking liquor with a prisoner

Again, this must have been a serious problem for the military to warrant codifying this law. Actually, I can see a situation where a military member is ordered to guard another brother/sister in arms and decides that having a drink (or 10) with a fellow member is not such a bad idea. The maximum punishment for the drinking buddy offense is confinement for three months and forfeiture of two-thirds pay per month for three months.

Indecent language

After serving four years in the military, I had no clue that using indecent language was punishable. It would be interesting to research the history of this law and why it became necessary to punish a military member for “cursing like a sailor.” According to the UCMJ, “‘Indecent’ language is that which is grossly offensive to modesty, decency, or propriety, or shocks the moral sense, because of its vulgar, filthy, or disgusting nature, or its tendency to incite lustful thought.” The punishment is worse if it is communicated to a child younger than 16. In such a case, the maximum punishment is dishonorable discharge, forfeiture of all pay and allowances, and confinement for two years. In other cases, the maximum punishment is bad-conduct discharge, forfeiture of all pay and allowances, and confinement for six months.

Abusing a public animal

Public animals include any animals owned or used by the United States. The UCMJ gives an example of military working dogs. Who in their right mind would attempt to abuse a military working dog? They are wonderful, obedient, yet vicious animals (take a tour of MacDill Air Force Base for an exhibition). Anyone stupid enough to do this should get a stiff punishment, but the military decided the maximum punishment is confinement for three months and forfeiture of two-thirds pay per month for three months. 

There are other odd laws under the UCMJ that I could not discuss because of the word limitations of this article. Some examples: straggling (never fallback in a march); jumping from a vessel (this must have been a Navy problem); communicating a threat (I wish my drill sergeant in basic training knew this one – he threatened to maim me on several occasions for being stupid). Although I presented these laws as a topic of amusement, I do not mean to make light of the importance of the UCMJ and its necessary role in keeping law and order in the military ranks.

Thursday, August 27, 2015

Community Services Committee: Will You Help Us Raise the Bar on Adult Civics Education?

By Sacha Dyson

     If you have ever watched “JayWalking” with Jay Leno, then you know there is a troubling deficiency in adult civics competency and a striking need for education. Person after person stumbles on questions that most elementary school children can answer. Last year, the Annenberg Public Policy Center surveyed 1,416 adults on this topic with astonishing results:
  •   64 percent could not name the three branches of government.
  •  35 percent could not name a single branch of government.
  •  73 percent do not know that it takes a two-thirds vote of Congress to override a presidential veto.
  • 21 percent believe that a 5-4 Supreme Court decision is sent back to Congress for a determination.
     Similarly, a 2011 Annenberg survey found that nearly twice as many people could correctly name a justice on American Idol than those who could correctly identify the current chief justice of the United States Supreme Court. This same survey found that only 42 percent of respondents know that serving on a jury is a duty exclusively for United States citizens.

     While the disapproval rating for Congress and the Supreme Court is increasing, the Annenberg surveys demonstrate that few people understand how these branches of government work. This is a problem for lawyers. Uninformed citizens are less likely to vote and, more importantly, less likely to support the judicial system. As lawyers, we have a duty to protect and support the independence of the judiciary. One way to serve this responsibility is through education. Indeed, The Florida Bar has recognized that “[a]n informed public is the best defense of a vigorous democracy, the rule of law, and a fair and impartial judiciary.” 

     In recognition of the important role that attorneys play in adult civics education, The Florida Bar created Benchmarks: Raising the Bar on Civics Education, which provides presentations and activities that attorneys can use to talk about the government and the courts to adult civic and community groups. Attorneys who are trained in providing these presentations are eligible to earn 1 CLE ethics credit hour for each presentation (up to a total of 3 hours per reporting period). Currently, there are 10 presentations available on the Constitution, the courts, and special topics, such as the citizenship test and voting rights. These presentations are easy to give, interactive, and fun for both the presenter and audience. 

     The Community Services Committee is launching the Benchmarks program in Tampa. It will be one of the five programs that the committee is hosting this year (others include Adopt a Veteran, Elves for Elders, Dining with Dignity, and a Pirate Plunder Party at A Kid’s Place). The committee will be planning a training session for attorneys interested in giving Benchmarks presentations, advertising these presentations to local civic and community groups, and helping to match attorney volunteers with these opportunities. Won’t you come be a part of implementing this vital program? Our first meeting is September 2 at noon at the Chester H. Ferguson Law Center.

Wednesday, August 26, 2015

Mediation and Arbitration: Confidentiality Provisions in Settlement Agreements

By John A. Schifino

Confidentiality provisions are standard clauses in settlement agreements. The parties have finally reached a resolution, and either one or both of the parties would prefer that the terms of the agreement not become public – whether it’s an amount paid, a right waived, or some other obligation. But what is the confidentiality provision good for? While it certainly binds the parties to the agreement, does a confidentiality clause shield the agreement from discovery requests by nonparties to the agreement? Florida’s courts have made it clear that it does not.

Our district courts of appeal have uniformly held that while confidentiality agreements may be necessary in some instances to facilitate settlement, they may not be subsequently employed by a litigant to obscure issues or otherwise thwart an opponent’s discovery. See e.g., Smith v. TIB Bank of the Keys, 687 So. 2d. 895, 896 (Fla. 3d. DCA 1997); Neiman v. Naseer, 47 So. 3d 954, 955 (Fla. 4th DCA 2010). One court reasoned that “[w]hile we recognize and respect strong public policy favoring settlement of disputed claims and policy which dictates that confidentiality agreements not be regarded lightly, we find that to prevent any discovery based upon a settlement agreement would result in a defendant being able to buy the silence of witnesses with a settlement agreement when the facts of one controversy may be relevant to another.” Scott v. Nelson, 697 So. 2d 1300, 1301 (Fla. 1st DCA 1997). The court concluded that “an overzealous quest for alternative dispute resolution can distort the proper role of the court" and that "[s]ettlement agreements which suppress evidence violate the greater public policy.” Id. (quoting Kalinauskas v. Wong, 151 F.R.D. 363, 367 (D. Nev. 1993)).

In the context of a plaintiff trying to shield discovery based on the assertion of a privilege, the Florida Supreme Court has similarly held:
It does not follow that the protection of the privilege should be expanded to shield a plaintiff who with one hand seeks affirmative relief in court and with the other refuses to answer otherwise pertinent and proper questions which may have a bearing upon his right to maintain his action. To uphold this inconsistent position would enable the plaintiff to use the privilege as an instrument of attack. Stockham v. Stockham, 168 So. 2d 320 (Fla. 1964).  

The court concluded:
Plain justice dictates the view that, regardless of plaintiffs’ intention, plaintiffs must be deemed to have waived their assumed privilege by bringing this action. Id. at 322 (quoting Indep. Prods. Corp. v. Loews, Inc., 22 F.R.D. 266, 276 (S.D. N.Y. 1958)). 
So what are confidentiality provisions in settlement agreements good for? They are good for preventing the parties to an agreement from disclosing the terms of the agreement. A confidentiality clause will not, however, shield the settlement agreement from discovery requests by nonparties to the agreement.

When faced with a discovery request or subpoena for a confidential settlement agreement, the settling party should: 1) determine whether the request or subpoena falls within Rule 1.280 and, if so, 2) request his or her own confidentiality agreement or order from the requesting party and limit the use and disclosure of the settlement agreement to the pending action.

Eminent Domain Section Welcomes Its Members

By Blake Gaylord and Kenneth Pope

As your section co-chairs, we are happy to welcome back past members and new members to our section. As the economy continues to pick up steam and leave behind the recession, members of our section are getting busier, which will only add to the excitement of our increasingly popular, yet niche field of eminent domain.

During the coming year, we plan to host four luncheons, two of which will offer opportunities to earn continuing legal education credits. Our section is composed of lawyers from both the private and public sectors, as well as members of the judiciary. As such, we intend to reflect those perspectives in the luncheon topics. In addition to having the opportunity to listen to speakers address various topics in the field of eminent domain, our members will have opportunities to impart knowledge by publishing articles in the Lawyer magazine. We welcome your input on ideas, topics, and speakers for the luncheons. Also, we are seeking volunteers to author articles in the Lawyer magazine.

This year, we affirm our commitment to pro bono work. As such, we plan to increase our section's pro bono participation by sponsoring pro bono projects; joining with pro bono projects sponsored by other Hillsborough County Bar Association sections; offering training in areas of need; and hosting speakers who will share information about volunteer opportunities. If you have any ideas, please feel free to share them with our Pro Bono Committee representative, Angela Rauber,

Once again, welcome, and we look forward to sharing another year with you in the world of eminent domain.

Monday, August 24, 2015

Marital and Family Law: Hearsay Exceptions - Evidence in Contested Parenting Cases

By Katherine C. Scott

In family law cases where parenting and timesharing are contested, hearsay evidence is often at issue. This is in part because the court’s analysis of the best interest of the child often requires the consideration of out-of-court statements, but also because courts typically seek to protect children from becoming involved as witnesses in these proceedings. Knowledge of the hearsay rule exceptions will assist family lawyers in determining how to present critical evidence to the court within the bounds of the rules of evidence.

Spontaneous Statement Exception

Pursuant to section 90.803(1), Florida Statutes, a hearsay statement may be admissible if it was spontaneous and described or explained an event or condition while the declarant was perceiving it. For example, in a case where a child is subjected to an act of neglect or abuse by one parent and immediately thereafter communicates with the other parent regarding what occurred, the child’s statements to that parent may be deemed admissible under the spontaneous statement exception. However, it is important to note that if the circumstances of a purported spontaneous statement indicate a lack of trustworthiness, the statement may be deemed inadmissible. Therefore, the credibility of the proponent of the hearsay statement is an important consideration.

Then-Existing Mental, Emotional, or Physical Condition Exception

Under section 90.802, Florida Statutes, a hearsay statement regarding the declarant’s then-existing state of mind, emotion, or physical sensation may be admissible when it is offered to prove the declarant’s mental, emotional, or physical state at that time. A child’s statements regarding his or her physical or mental state as a result of timesharing with one parent (i.e., “I feel anxious when I spend the night at mom’s house.”) may be deemed admissible. Again, the key to the admissibility of a hearsay statement under this exception is the credibility of the proponent.

Business Records Exception

It is often important for the court to review a child’s school or medical records when making decisions regarding parenting and timesharing. These records may be admitted into evidence without the testimony of the declarant if the following requirements of section 90.803(6), Florida Statutes, are met: (1) The record is made at or near the time of the event in question; (2) the record is made by (or from information transmitted by) a person with knowledge; (3) the record was made in the course of a regularly conducted business activity; and (4) it was the regular practice of the business to make such a record. These requirements can be proven through the testimony of a records custodian or other qualified witness. However, the proponent can avoid the need for such testimony by obtaining a written certification in compliance with section 90.902(11), Florida Statutes, from the custodian. The proponent must serve reasonable written notice on the other party that he or she intends to rely on the certification and make the evidence available in advance of offering it into evidence.

Thursday, August 20, 2015

Securites Law: Reflections Upon the Securities Section’s Inaugural Year

By Dominique Heller and Jared Perez

Reflecting upon our section’s first year, we are grateful for our committees, panelists, moderators, article contributors, HCBA staff, and, of course, our members, whose efforts and participation made our first year a success. Here is the recap.

We held three luncheons. All were well attended (50 to 70 people). Our first, titled “Recent Enforcement Efforts & Current Focus in 2014,” provided an opportunity to interact with civil securities regulators in Florida. Burton Wiand of Wiand Guerra King P.A. moderated our panel, which featured Elisha L. Frank, assistant regional director for the U.S. Securities and Exchange Commission (SEC); Dawn Calonge, surveillance director for the Financial Industry Regulatory Authority (FINRA); Pamela P. Epting, director of the Division of Securities for the Florida Office of Financial Regulation (OFR); and Lee Kell, chief of the Bureau of Enforcement for the OFR.

Our focus turned to the criminal side during our second luncheon, “Pinstripes and Prison-Stripes: Criminal Implications of Securities Enforcement.” Brian Albritton of Phelps Dunbar, LLP, served as moderator. The panel included Andrew Sekela, supervisory special agent for the FBI; Andrew Warren, U.S. Department of Justice Criminal Division, Fraud Section; Michael Williams, Florida Attorney General Office of Statewide Prosecution; and Christopher Cutler, Foley & Lardner LLP, vice chair of the Securities Enforcement and Litigation Group.

Taking a hiatus for a social event, we hosted a Holiday Meet and Greet and a toy drive that benefited the Guardian ad Litem program. Our donors provided heaps of toys, and we raised money for 80 attendees to eat and drink, gratis, thanks to our generous sponsors: The Bank of Tampa; Cole, Scott & Kissane, P.A.; GrayRobinson, P.A.; Wiand Guerra King P.A.; and Heaven Sent Legal-Process Server.

Our last event of the year, “Lunch and Learn: Q&A Session with Our Decision Makers,” allowed participants to meet with those who decide securities matters in state, federal, and appellate court, as well as in arbitration. Moderated by George Guerra of Wiand Guerra King P.A., our esteemed panelists included Hon. Samuel J. Salario Jr., Florida Second District Court of Appeal; Hon. James S. Moody Jr., United States District Judge, Middle District of Florida; Hon. Mark A. Pizzo, United States Magistrate Judge, Middle District of Florida; Hon. Herbert Baumann Jr., Thirteenth Judicial Circuit; and arbitrator Brian G. Mooney.

We would like to extend special thanks to our Regulatory and Litigation Committee members for making all of this possible: Colleen Fitzgerald, Scott Ilgenfritz, Gianluca Morello, Chris Polaszek, Eric Ludin, the Hon. Samuel Salario, Matthew Schwartz, Lonnie Simpson, Dionne Fajardo, Marc Abramson, John Lauro, Mike Matthews, Andrew Warren, Jordan Maglich, John Benson, Joena Bartolini, and Bill Paul.

We are already gearing up for the year ahead with much enthusiasm. As always, we encourage feedback and ideas concerning how to better serve our members (we are up to 141!) in 2016. 


Monday, August 17, 2015

Real Property, Probate and Trust Law: Trending Litigation - What Evidence Are Judges Really Requiring?

By Jennifer Lima-Smith

Presenting Florida foreclosure case evidence should be straightforward. However, some of Florida’s more litigious circuits raise the bar for proving a foreclosure case. Evidence requirements routinely include the note, mortgage, payment history, breach letter, assignment of mortgage, affidavits, screen shots of acquisitions and default letters, power of attorney, certificate(s) of merger, corporate name change(s), and information about the platform system used to track payment(s).

To quote The Wizard of Oz, “We’re not in Kansas anymore, Dorothy."

For loans transferred from one servicer to another during the case, the witness should know the chain of ownership (origination to date of trial) and articulate specific steps to verify information. Section 90.803(6), Florida Statutes (2014), “provides a hearsay exception for records of regularly conducted business activity.” A.S. v. State, 91 So. 3d 270, 271 (Fla. 4th DCA 2012). Businesses rely upon their records “in the conduct of [their] daily affairs” and “customarily check [them] for correctness during the course of the business activities.” Charles W. Ehrhardt, Florida Evidence § 803.6 (2014 ed.).

Personal knowledge is crucial for establishing the reliability and accuracy of prior (servicer) records. Testimony should establish: (1) the proffered document is (was) a true and accurate representation, (2) the proffered document is (was) kept during the course of regularly conducted activities by a person with knowledge of the event or activity, (3) the person making the record had a duty to accurately compile the information, and (4) it is the regular practice to make such a record. Yisrael v. State, 993 So. 2d 952, 956 (Fla. 2008).

“First, the proponent may take the traditional route, which requires that a records custodian take the stand and testify under oath to the predicate requirements.” Yisrael, 993 So. 2d at 956 (citing § 90.803(6) (a), Fla. Stat. (2004)). “Second, the parties may stipulate to the admissibility of a document as a business record.” Id. “Third and finally … the proponent has been able to establish the business-records predicate through a certification or declaration that complies with sections 90.803(6)(c) and 90.902(11), Florida Statutes (2004).” Id. at 957.

Using the first option, “it is not necessary to call the individual who prepared the document.” However, “the witness through whom [the] document is being offered must be able to show each of the requirements for establishing a proper foundation.” Mazine v. M & I Bank, 67 So. 3d 1129, 1132 (Fla. 1st DCA 2011) (citation omitted); Hunter v. Aurora Loan Servs., LLC, 137 So. 3d 570, 573 (Fla. 1st DCA 2014);    Cayea v. CitiMortgage, Inc., 138 So. 3d 1214, 1217 (Fla. 4th DCA 2014). Holt v. Calchas, LLC, 155 So. 3d 499 (Fla. 4th DCA 2015), sheds some guidance and seems to indicate familiarity with specific record-keeping systems (past and present) is needed. In Bank of New York v. Calloway, 157 So. 3d 1064 (Fla. 4th DCA 2015), the court reaffirmed the introduction of a payment history.

To ensure best practices, always consult with your foreclosure and litigation counsel.

Thursday, August 13, 2015

Labor and Employment Law: New Definition of Spouse Under the FMLA

By Cullan Jones

On February 25, the Department of Labor issued its final rule broadening the definition of “spouse” under the Family and Medical Leave Act (FMLA). The expansion of the definition guarantees that , same-sex couples enjoy the same status under the FMLA as legally married, opposite-sex couples. The final rule went into effect on March 27.

The FMLA allows eligible employees of covered employers to take job-protected leave to care for a spouse with a serious health condition, to address issues arising out of a spouse’s covered military service, and to provide military caregiver leave for a spouse. Covered employers generally include private-sector employers with 50 or more employees in a 75-mile radius and public-sector employers (including local, state, and federal government agencies) regardless of size.

The Department of Labor’s final rule changes the FMLA’s method for determining spousal coverage from the previous “place of residence” rule to a “place of celebration” rule. Under the old rule, spousal status was determined by the laws of the state where the employee resided. Under the new rule, spousal status is determined by the laws of the state where the employee was married. Thus, an employee who is legally married under the laws of a state that recognizes same-sex marriage is entitled to spousal benefits under the FMLA in any state. In practical terms, covered employers must grant spousal benefits under the FMLA to any employee who legally enters into a same-sex marriage, regardless of whether the employer is located in a state that does not recognize same-sex marriage. In addition to extending FMLA rights to spouses in same-sex marriages, the new rule also recognizes the validity of certain same-sex marriages entered into abroad and requires employers to recognize valid common-law marriages. The rule, however, does not protect civil unions or domestic partnerships.

Employees in legal, same-sex marriages — regardless of where they live — now have the same federal family and medical leave rights that opposite-sex married couples have nationwide. The "place of celebration" rule allows eligible employees to take spousal FMLA leave to care for the same-sex spouse with a serious health condition, take qualifying exigency leave for the same-sex spouse’s covered military service, and take military caregiver leave for the same-sex spouse.

Employers should train their leave administrators and managers on the new rule and update existing policies, procedures, forms, notices, and benefit plans to ensure compliance with the expanded definition of "spouse."

Thursday, August 6, 2015

Intellectual Property: The STRONG, TROL, and Innovation Acts of 2015

By Cole Carlson

The Support Technology & Research for Our Nation’s Growth Act, otherwise known as the STRONG Patent Act of 2015, was recently introduced into the Senate by Sens. Chris Coons, Dick Durbin, and Mazie Hirono. The bill proposes some major reforms: (1) amending some of the recently created post-grant proceeding rules and procedures; and (2) cracking down on abusive demand letters, among others. In the House of Representatives, Rep. Bob Goodlatte re-introduced the Innovation Act, proposing similar reforms. Also, the Targeting Rogue and Opaque Letters Act, otherwise known as the TROL Act, recently passed the House Commerce Subcommittee with bipartisan support.

One of the major changes currently proposed in both the STRONG Act and the Innovation Act involves changing the standard used in claim construction when practicing in front of the Patent Trial and Appeal Board (PTAB). Currently, the PTAB uses the “broadest reasonable interpretation” standard. Both acts propose to use the standard adopted in district court litigation: “the meaning a term would have to a person of ordinary skill in the art at the time of invention.” STRONG also proposes to change the burden of proof at the PTAB to a “clear and convincing evidence” standard, which is the standard currently used in district court litigation.

Additionally, all three acts take on patent demand letters. STRONG would empower the Federal Trade Commission to crack down on abusive and intentionally vague patent-related demand letters. STRONG attempts to lay out the various ways patent demand letters have been deficient in the past and create liability for those who intentionally or recklessly send vague demand letters. This includes actions such as sending a demand letter while knowing of no right to enforce, communicating that legal action will be taken against the recipient, seeking compensation from the recipient when the patent has already expired, and failing to include the identification of a patent or a person having a right to enforce a patent. A person who violated this part of STRONG would be subject to any penalty that could be enforced by the Federal Trade Commission. The TROL Act concerns itself with sending bad faith demand letters, clarifies that such activity can violate the Federal Trade Commission Act, and allows the FTC and state attorneys general to enforce its provisions with civil actions through a showing of “bad faith.” The Innovation Act, on the other hand, has no such FTC empowerment and only limits the establishment of willful infringement if the demand letter was purposefully vague.

The STRONG, TROL, and Innovation Acts propose to continue the reform that started with the America Invents Act in 2012. The acts are reacting to trends in post-grant proceedings, as well as trends in the district courts. The proposed reforms, at first blush, seem pro-patentee and pro-consumer at the same time. All three bills, however, have yet to pass both houses and are awaiting further votes. More changes to their substance may be forthcoming.

Tuesday, August 4, 2015

Immigration Law: Court Overturns Deportation for Drug Conviction

By Adam Suess

Over the last nine terms, the Supreme Court has interpreted the Immigration and Nationality Act (INA) narrowly in three cases — Moncrieffe v. Holder, 133 S. Ct. 1678 (2013); Carachuri-Rosendo v. Holder, 130 S. Ct. 2577 (2010)and Moncrieffe v. Holder, 127 S. Ct. 625 (2006) — in favor of aliens. The Supreme Court’s latest decision — Mellouli v. Lynch, No. 13-1034 (June 1, 2015), slip opinion  — represents the latest brick in the road for the court in deportation cases.

In Mellouli, Moones Mellouli, a Tunisian citizen and lawful permanent resident of the United States, pleaded guilty in 2010 to possession of drug paraphernalia (containing four Adderall pills) in violation of a Kansas controlled substance law. Kan. Stat. § 21-5709.* Several months after his release from probation, Immigration and Customs Enforcement officers arrested Mellouli as deportable under federal law. Mellouli, slip op. at 1-2. Section 1227(a)(2)(B)(i) of the INA authorizes the removal of any alien “convicted of a violation of  ... any law or regulation of a State, the United States, or a foreign country relating to a controlled substance (as defined in section 802 of Title 21).” 8 U.S.C. § 1227(a)(2)(B)(i) (emphasis added). Mellouli was deported in 2012 after the Board of Immigration Appeals affirmed his deportation order even though Kansas defines “controlled substance” without reference to 21 U.S.C. § 802 and the Kansas statute includes nine substances not on the federal list. Mellouli v. Holder, 719 F.3d 995, 999 (8th Cir. 2013). The Eighth Circuit Court of Appeals denied Mellouli’s petition for review. Id. at 1002 (affirming “the [Board of Immigration Appeals]'s categorical determination that Mellouli's drug paraphernalia conviction was within § 1227(a)(2)(B)(i), without regard to whether the paraphernalia was used in connection with a federally scheduled drug”). But in 2014, the Supreme Court granted certiorari, and in June, it reversed the judgment of the Eighth Circuit.

A seven-justice majority, led by Justice Ruth Bader Ginsburg, decided that Congress intended to directly tie the removal statute to the federal controlled substance schedules listed in 21 U.S.C. § 802. “[T]o trigger removal under § 1227(a)(2)(B)(i), the Government must connect an element of the alien’s conviction to a drug ‘defined in [§ 802],’” she wrote. Mellouli, slip op. at 14. Because the scope of Kansas’ controlled substance schedules was more expansive than the federal government’s at the time of Mellouli’s conviction, and because Kansas did not “charge, or seek to prove, that Mellouli possessed a substance on the § 802 schedules,” the court concluded that federal law did not authorize Mellouli’s deportation. Id. at 2. In reaching this result, the court applied a categorical approach, where it “looks to the statutory definition of the offense of conviction, not the particulars of an alien’s behavior,” to determine whether an alien is removable. Id. at 5-6 (citing Moncrieffe v. Holder, 133 S. Ct. 1678, 1684 (2013)).

Justice Clarence Thomas, joined by Justice Samuel Alito, argued that the majority’s reading of the removal statute requires too much and dissented. Instead, they would hold, “consistent with the text,” that a conviction under any law that sufficiently relates to 21 U.S.C. § 802 satisfies the requirements of the removal statute, “regardless of whether [the charged] conduct would also [subject a defendant] to prosecution under federal controlled-substances laws.” Id. at 2 (Thomas, J., dissenting).  “I would affirm,” Justice Thomas wrote, because the Kansas drug paraphernalia law bears enough relationship to federally controlled substances “under any reasonable definition of ‘relating to.’” Id. at 5 (Thomas, J., dissenting).

However you see it, the court’s decision should come as no real surprise. As the country collectively grapples with immigration policy, and as we turn to what will be a long and important political season, expect Mellouli and other decisions like it to frame the larger immigration debate.

* Note: After Mellouli's arrest, jail personnel found four orange pills hidden in his sock. Kansas initially charged Mellouli with trafficking contraband into a jail, a felony, but later allowed him to plead guilty to possession of drug paraphernalia, a misdemeanor. At some point, Mellouli admitted that the orange pills were Adderall.

Trial & Litigation Section: Two Recent Decisions Invalidate Certain Types of Offers of Judgment

By Ellen K. Lyons

Recently, the Florida Supreme Court issued two opinions with regard to offers of judgment made pursuant to Florida law: Pratt v. Weiss, 161 So. 3d 1268 (Fla. 2015), and Audiffred v. Arnold, 161 So. 3d 1274 (Fla. 2015). 

In Pratt v. Weiss, two defendants claimed they were a “single offeror” and their liability was “coextensive” even though they were separate entities. The court found that despite their coextensive liability, when the two defendants made an offer of judgment, they needed to have apportioned the total amount as between each of them, so that the plaintiff could know how much he would receive from each entity. From the Pratt case, we learn that when evaluating offers of judgment made before 2011, if two defendants will be dismissed, both defendants need to make the offer and apportion the total amount between them. Since 2011, however, Rule 1.442(c)(4) allows unapportioned joint offers of judgment to be made by or served on a party when that party is alleged to be solely vicariously, constructively, derivatively, or technically liable.

In Audiffred v. Arnold, the court invalidated an unapportioned offer of judgment that was made by a single plaintiff, when that offer really should have been made by both the plaintiff and her husband (who had a consortium claim), and held that the offer should have apportioned the total amount between the plaintiff and her husband. If the Audiffred offer of judgment had worked as intended, both the injured plaintiff and the consortium plaintiff would have dismissed their claims in exchange for a single payment from the defendant to just the injured plaintiff. In the disputed offer of judgment, the two plaintiffs offered the defendant the opportunity to buy peace with two plaintiffs for the price of one (essentially offering a bonus or incentive to the defendant). These types of offers had been supported by prior case law, and some district courts of appeal had approved similar offers by defendants. The Audiffred decision holds that this type of bonus offer from plaintiffs is not enforceable for fee-shifting purposes. It also expressly disapproves of the district court cases that allowed similar offers by defendants. The direct lesson from Audiffred is that an offer of judgment made by one plaintiff that involves dismissal of itself and another plaintiff is going to be construed as a joint offer of judgment that must be apportioned. Like Pratt, Audiffred relates to offers served before the 2011 amendment to Rule 1.442. Going forward, we will simply need to rely on Rule 1.442 to determine whether the total amount of an offer of judgment from two offerors must be apportioned. 

These cases demonstrate that the Florida case law relating to offers of judgment and proposals for settlement is constantly shifting. Because new cases continually adjust the application of the offer of judgment statue and rule, it is important to continually review offers of judgment in light of the changes in the law.

Saturday, August 1, 2015

Health Care Law: The PSQIA/Amendment 7 Debate in Preparation for Charles

By Jacqueline R. A. Root and Edward J. Carbone

In a storm of acronyms that has been brewing since 2005, the First District Court of Appeal is set to rule on the interaction of Florida’s Amendment 7 and the federal Patient Safety and Quality Improvement Act of 2005 (the PSQIA) in Southern Baptist Hospital of Florida v. Charles. Case No.1D15-0109, First District Court of Appeal, State of Florida. It is expected to be the first Florida appellate court to decide whether the PSQIA preempts Amendment 7.

The First District will determine whether documents that the hospital assembled or developed within the hospital’s Patient Safety Evaluation System  for reporting to a Patient Safety Organization (PSO),  both as defined by the PSQIA, will be afforded the federal privilege established by the PSQIA. 

The two big issues:

  1. Whether the PSQIA preempts Amendment 7. The PSQIA includes clear and explicit language indicating its intent to preempt state law. See 42 U.S.C. § 299b-22(a)-(b). There is also a strong argument for conflict preemption, as compliance with both schemes is impossible. Amendment 7 gives patients and their representatives access to records of adverse medical incidents, while section 299b-22(a) of the PSQIA declares those same records privileged and confidential except in a limited set of circumstances. Required disclosure under Amendment 7 also stands as a significant obstacle to the accomplishment and execution of the intent of the PSQIA and its associated regulations. The stated purpose of the PSQIA is to encourage providers to join PSOs to share patient safety and quality information “within a protected legal environment” without the fear that the information will be used against them in litigation. Amendment 7, if applied to patient safety work product like the internal documents frequently requested by medical malpractice plaintiffs, would eviscerate that intended protection and serve as a disincentive for providers to participate.
  2.  Whether reports of “adverse incidents,” which Florida law requires hospitals to create and maintain – but not report – constitute protected patient safety work product (PSWP) under the PSQIA. This is the million-dollar question. There is a reasonable argument that sending a report to the state removes it from consideration as PSWP. However, those reports that are collected for review by a PSO, and not required to be reported externally, should not be excluded from the definition of PSWP simply because they also satisfy a licensure or regulatory requirement imposed on the provider. To do so would contravene the stated intent of the PSQIA and would effectively authorize state nullification of federal law simply because the state law regulates health care providers. As argued by the Charles petitioners and amici, the distinction between internal maintenance requirements and external reporting requirements best effectuates congressional intent. Only time will tell, however, whether the First District agrees. Stay tuned.

Note: This article assumes familiarity with the underlying legislative schemes. For a thorough and well-written discussion of the background of the PSQIA and Amendment 7, please see the Charles Petition for Writ of Certiorari and the Brief of Amici Curiae filed in support of the petition.