Legal Conservative Blog

Investors.com – Another Radical Judge.  Interesting and troubling  editorial about a candidate for the 7th  Circuit Court of Appeals.

Supreme Court Justices debate, draw laughs at Tucson event | www.azstarnet.com ®.

Interesting brief article discussing Justices Scalia and Breyer’s debate on how to interpret a constitution.

One of the biggest economic concerns in Florida continues to be the decreased prices in the real property markets, both residential and more recently commercial.  Any time this type of financial upheaval occurs, important legal cases will result, although sometime the maxim that difficult facts can result in bad law holds true.  The classic example of this in the foreclosure context is the case that started it all, the case the gutted the impairment of contracts clause in the U.S. Constitution, Home Building & Loan Association v. Blaisdell, 290 U. S. 398 (1934).  In Blaisdell, the state, basically concerned about all the homes that would be in foreclosure, enacted a moratorium on foreclosing, if certain minimum payments were made, and so on, clearly impairing the rights of mortgage holders, and the held that  this did not violate the constitutional impairment of contracts provision.  An awful decision, since the impairment of contracts clause was explicitly added to keep states from doing debt relief in such a fashion.

Which brings us to the current day, and a case from the 3rd DCA  in which the court said it was sending a message to the trial judges and laying down a rule that granting a motion for an extension of time in a foreclosure case out of benevolence and compassion (empathy)  was an abuse of discretion.  http://www.3dca.flcourts.org/Opinions/3D09-2405.pdf  If Justice is to  be blind, this is a correct decision; rulings are to be made without respect to the parties.  Interesting as well were further comments in the Daily Business Review as to the facts of the case, and finding out that the home at issue is a multi-million dollar home, and that the defendants had already filed bankruptcy to stay the foreclosure action, which bankruptcy was dismissed with a six month bar on filing a new one, a bar which would have kept the defendant from filing a new petition before the originally scheduled sale.

The whole area of the pending foreclosure cases is a troubled one, troubling from a human perspective because these are real people involved, but perhaps even more troubling because of the derogation of  contract law in the context of foreclosures.  Is it even ethical for attorneys to attempt to delay the process of foreclosure for the sake of delaying the displacement of foreclosed families?  Should not the question be if the homeowner is in default under the terms of the mortgage, and if so, foreclosure is granted.  Attempting to have the parties work out a solution is fine if both parties agree, but forcing dispute resolution- this is definitely a beast of a different coat.  Up to two years to foreclose is a breakdown of the court system.

In this same vein, the Eleventh Circuit has just issued an opinion on whether the Interstate Land Sales Full Disclosure Act, better known as ILSA, applies to certain condo sales. 11th Circuit ISLA Decision Slight context, ILSA is not to apply if the sale is for a condo the developer has agreed to deliver within 2 years.  If ILSA applies, then it is often a basis to get out of a contract and recover a deposit. In the case at the Eleventh Circuit, the buyers had put a deposit down on a condo in 2005, probably at the peak of the market.  The condo was completed  within the 2 years, but the buyers sued for their deposit back, arguing that it was subject to ILSA, because the  Force Majeure  contract clause  meant that the claim of delivery within 2 years was illusory, even though delivery had occurred.

The court described the case as thus:

In a market-based economy the price of housing, like other goods, is subject
to swings. There was a sharp upward swing in housing prices between late 2000
and the end of 2005, and the resulting bubble was bigger in Florida than it was in
most other states. Home prices there rose eighty-two percent in absolute terms
during that short period, outstripping the fifty-one percent national increase. See
Gabriel Montes Rojas et al., The Florida Housing Boom, 3 Fla. Focus 1, 2 (2007).
All bubbles eventually burst, as this one did. The bigger the bubble, the bigger the
pop. The bigger the pop, the bigger the losses. And the bigger the losses, the more
likely litigation will ensue. Hence this case.

There may be a conflict with this decision and some Florida Supreme Court decisions, so the final chapter may not be written.

The Trial |Judge Issued his ruling to day on the Sansom official misconduct charges, and dismissed them, leaving only a perjury charge based on Sansom stating that the College had requested the increase in funds and the state contradicting that testimony.Sansom Order Dismissing Official Misconduct.  As we previously noted, the arguments to dismiss were not frivolous, and the likelihood of this order of dismissal being reversed on appeal should be slim. Public outrage does not a crime make.  On the Perjury charge, it will be interesting to see if that testimony before the Grand Jury meets the test of materiality, since the substantive charges have now been dismissed.  The Trial Court held that it was material, since the grand jury had jurisdiction to investigate official misconduct, even if no charge were brought.

See e.g. Kungys v. United States, 485 U.S. 759, 770 (1988) ” A false statement is material if it has a natural tendency to influence, or is capable of influencing, the decision of the decision-making body to which it was addressed.” 

Well, the Supreme Court issued its order list  of cases it granted Cert in last week after its first long conference, and Frazier was not among the cases Cert was granted in, but as of today Cert has now been denied.  For those of you not familiar with this case, a case I had the privilege of arguing at the trial level in the Southern District, this is a case that is referred to as being about reciting the pledge, but it is really a case that is important in the context of parental rights.

Basically, this case was about the facial constitutionality of the Florida Statute that allows students not to participate in saying the pledge, but that required a parent’s written permission for a student to opt out of saying the pledge.  There was a issue as to another portion of the statute and all civilians being required to stand, but that was always a side issue, because the State consistently said that if a student is excused from saying the pledge, he is excused from everything, including standing.  The Eleventh Circuit held that it was constitutional to require a parents permission in writing before a student was excused from a pledge, and that this requirement did not violate the Student’s First Amendment rights, but protected the parental right in the upbringing of their minor child.

This should not have been a particularly surprising outcome, tut Judge Barkett had a vehement dissent from the the denial of the rehearing en banc, and a law review article from UM took a similarly dismissive view. (opinions and article to be posted later).

In the educational context, don’t forget that the parents have the right to choose what courses a minor child will take, what extra- curricular activities the child will engage in, and even, as established by the Supreme Court in Wisconsin v. Yoder, whether if for religious reasons a child will not be educated beyond the 8^th grade.  When it comes to minor children, they need a parent’s permission for almost everything, even exercising fundamental rights, such as the right to marry. The only real area of legal exception is the abortion context, and some related sexual heath issues.

The assumption has always been that the parents control whether or not a child would participate in the pledge – interestingly enough, in the Barnett case on the right not to say the pledge, the statute struck in that case would have imprisoned the parents if their child refused to say the pledge- an implicit acknowledgement that the parents control whether a child participates in the pledge.  And, of course, there are potential consequences for parents today in regard to a child participating in the pledge- it would be perfectly lawful in most cases for a private business to fire a parent because it became public that they allowed their child to refuse to participate in the pledge.

More analysis of this case hopefully to follow.

Well, the First DCA issued its opinion today in the NCAA Public records case, and no real surprises, given the oral argument. The court held the records were public because they were received by a public agency.  The court  did specify that it was not deciding whether the requested records were protected under FERPA if they had not been redacted, and seemed to hold that a record with student information  redacted is not  is not protected under FERPA.  Only interesting note I see from deciding the opinion this way is that the NCAA may never have had public records not subject to FERPA, since the court declined to reach this issue.  I think the redacted copies were only in the possession of FSU and their law firm, NCAA had unredacted copies, but I doubt the court intended this result. 09-4385.pdf (application/pdf Object).

Other interesting result of this case, perhaps not really intended , and one that I suspect will prove unenforceable, is the holding that a private record, that only becomes a public record when provided to a public agency, also becomes a public record in the custody of a private entity.  Taking the legal holding at face value, the result is that a private citizen , exercising his right to petition the government for a redress of grievances, now is liable for attorney fees if he does not provide a timely copy of his grievance to someone who requests that copy of the now public record from him.  If this is a reasonable interpretation of Florida’s public record law, I see this aspect dying a fiery death under the First Amendment if applied this way.

Biggest question though is whether the NCAA will ever provide this information to Florida Universities in the future if providing private information makes it a public record.

Today the First DCA  issued an opinion in Oken v. Williams, 1D08-3398, granting a petition for cert in case that argued that the trial court had failed to follow the law when denying a motion to dismiss for failure to comply with presuit notice in a medical malpractice action.  Basically, the plaintiff was attempting to bring a action against a board certified cardiologist, but had a corroborating affidavit signed by a doctor who was board certified in family and emergency medicine.  The motion to dismiss alleged that he was not a qualified expert.  The trial court however found that the areas he was certified in covered the areas of evaluating heart conditions and he was qualified therefore to do an affidavit.  The court found this in error, and basically said that you would have to be a cardiologist to be an expert.  The opinion then detoured off into the questions of whether citation to internet sources was appropriate, since the majority cited to internet sources to demonstrate what his not cardiology certifications did not qualify him as a cardiology expert- a generalist was not qualified to opine as to a specialist.

Appears the majority is correct on the standard for a presuit expert, but the interesting question is whether the record below, without resort to internet explanation of the meaning of specific board certifications, was sufficient to determine he was not qualified as an expert in cardiology.  Anyone with a med background or similar exposure could easily have reached that conclusion- generalist and specialist board certifications are different, but should a trial judge have understood that?  The majority said their result did not depend on internet citation and with basic background med knowledge, that is certainly true.  The dissent though doubted that the factual record was sufficient to make the determination without understanding the meaning of board certification, and raises the issue of when it is proper to cite to the internet, and what sources on the internet, if not part of the record below.  The opinion has a wealth of cites to other Florida appellate cases in which citations to the internet have been done, and it is an interesting discussion that will be more and more relevant in this electronic age.

222 years later, constitution scholars find little to celebrate in founding document – News.

Amazing headline from Harvard Law Record, but explains much about current elite constitutional thought, and it is worth reading from that perspective.  Thanks to How Appealing for identifying this gem.

Well, the Oral Argument was held this morning at the First DCA, and based on the questions from the Panel, it does not look good for the NCAA .   The panel did ask some questions on the FERPA, Public Records exemption issue, but the discussion seemed to be somewhat sidetracked on the fact the documents were voluntarily redacted, by the parties other then the NCAA. This  should not be a legal factor for the FERPA question before the court, the question of whether the records at issue contained student information.  One can presume based on the redactions that they did, and if so the entire records would appear to be exempt under Fla Law. Wonder if the panel may look at this further, although one judge seemed to think  the FERPA issue was not before the Court.

The Con Law questions were never discussed, and the court did not seem to be interested in the argument that the university had never received the records.  Here is an interesting hypothetical question on the receipt, if the NCAA had allowed the records to be read aloud for the benefit of the university on a closed circuit television station that was not recorded, would a public record have been received? Or how about if this were done over the course of a phone call.  Would a public record have been received? How is it different if the documents are viewed, but no other control over the documents is given to the “recipient.” And interestingly enough FSU would likely commit a crime if it attempted to record a phone call with these same contents without the permission of the NCAA.  Does not appear the digital nature of the transmission is all that relevant legally, both of the above  methods are as digital as viewing on a secure web site, but unlikely to create public records.  Interesting questions on what “received” means, maybe the question of receipt is the question of the ability to legally store and control.

Wonder if clarification of the law on how an entity cannot avoid public records requirements by delegating document custody or production to others, and the distinction  of where a document is not public because of its creation or delegation may help.

Annals of Law: Bench Press : The New Yorker.  Are Obama’s Judges really liberals,? by Jeffrey Toobin.  Interesting article not so much for the topic it discusses, but for its discussion of what liberal and conservative means, and noting how the language of judicial confirmations now presumes a need for judges to use conservative descriptions in the confirmation process.