SCOTUS Affirms Sanction of Florida Judicial Candidate

1stAmOn April 29, 2015, the Supreme Court of the United States affirmed a Florida Supreme Court decision upholding disciplinary sanctions against Lanell Williams-Yulee, a candidate for County Court Judge in Hillsborough County.  See Williams-Yulee v. Florida Bar, Case No. 13-1499 (2014); Florida Bar v. Williams-Yulee, 138 So.3d 379 (Fla. 2014).  Williams-Yulee was disciplined by the Florida Bar for violating a Florida Bar Rule that requires judicial candidates to comply with Canon 7C(1), Code of Judicial Conduct.  Canon 7C(1) prohibits judicial candidates from “personally solict[ing] campaign funds.”  Williams-Yulee was found to have violated the rule when she mailed and posted online a letter soliciting campaign contributions.  SCOTUS undertook review after Williams-Yulee asserted that the solicitation letters were protected by the First Amendment.  The 5-4 decision, which drew dissents from Justices Scalia, Thomas, Kennedy and Alito, held that Canon 7C(1) was narrowly tailored to serve a compelling State interest–preserving public confidence in the integrity of the judiciary.  The majority said, “[I]t is the regrettable but unavoidable appearance that judges who personally ask for money may diminish their integrity that prompted the Supreme Court of Florida and most other States to sever the direct link between jducial jandidates and campaign contributions.”  The dissenting opinions provide some interesting fodder for debate.  For example, Justices Scalia and Thomas called Canon 7C(1) a “wildly disproportionate restriction upon speech.”  In their opinion, “banning candidates from asking for money personally ‘favors some candidates over others–incumbent judges (who benefit from their current status) over non-judicial candidates, the well-to-do (who may not need to raise any money at all) over lower income candidates, and the well-connected (who have an army of potential fundraisers) over outsiders.”

The full opinion can be read here.

Delayed Discovery Doctrine Held Not to Apply to Negligence Actions Involving Child Sexual Abuse

BrainIn an opinion filed on September 4, 2013, the Third District Court of Appeal held that the delayed discovery doctrine does not apply to extend the statute of limitations in a negligence action arising out of allegations of child sexual abuse.  The delayed discovery doctrine generally provides that a cause of action does not accrue until the plaintiff either knows or reasonably should know of the tortious act giving rise to the cause of action.  The date a cause of action accrues is important because it is from the date of accrual that the statute of limitations is calculated.

The delayed discovery doctrine was first applied in a childhood sexual abuse case by the Florida Supreme Court in Hearndon v. Graham, 767 So. 2d 1179 (Fla. 2000), which held that the delayed discovery doctrine applied to the accrual of an intentional tort action brought by a sexual abuse victim against the perpetrator.  The victim had alleged traumatic amnesia made her unable to recall the events for more than a decade.  In Hearndon, the Florida Supreme Court acknowledged that, in 1992, the Florida legislature had effectively adopted the delayed discovery doctrine with respect to intentional tort actions concerning child sexual abuse.  However, the Heardon case pre-dated the enactment of that legislation.  In adopting the delayed discovery doctrine in that case, the court effectively found a way to apply the new legislation to the older case.

Fast forward 13 years to the case of Cisko v. Diocese of Steubenville, Case No. 09-35639, 38 Fla. L. Weekly D1902a (September 4, 2013), in which Appellants/Plaintiffs had sued the Diocese for negligence relating to physical and sexual abuse alleged to have been suffered between 1966 and 1967 at the hands of two priest under the Diocese’s supervision.  The Plaintiffs claimed traumatic amnesia had rendered them unable to recall the events of abuse until May 2005.  The Diocese prevailed at summary judgment based upon the expiration of the four-year statute of limitations on negligence actions.  Citing Hearndon v. Graham, Appellants contended that the delayed discovery doctrine deferred the accrual of the cause of action.  The Third District found, however, that the Hearndon holding is limited, not only to cases of traumatic amnesia, but to intentional tort causes of action.

While the Third District’s holding is consistent with the current § 95.11(7), Florida Statutes, which extends the statute of limitations for intentional tort cases based on abuse, and cases which have refused to expand the statute’s application to negligence cases, it does raise an interesting policy consideration.  If the State of Florida is committed to redressing child sexual abuse regardless of when it may be discovered, should it matter whether the defendant is the perpetrator or someone who enabled the perpetrator, or what the specific cause of action against the defendant may be?

NJ Appeals Court Says Non-Driving Texters Can Be Liable for Accidents

15862_wpm_lowresIn a brow-raising opinon issued by the Superior Court of New Jersey Appellate Division this week, the court determined that a non-driving sender of text messages can potentially be liable for damages if an accident is caused by a distracted text recipient.  See Kubert v. Best, No. A-1128-12T4, (N.J. Super. Ct. App. Div., August 27, 2013).  In the case, the plaintiffs were injured when a texting teen crossed the median and collided with the plaintiffs’ motorcycle.  The trial court dismissed a claim against the person with whom the teen was texting, a 17 year-old “remote texter,” reasoning that that the remote sender did not have legal duty to avoid sending a text message to a person who is driving.  The appellate court disagreed with the trial court and concluded, under a common law negligence theory, that “a person sending text messages has a duty not to text someone who is driving if the texter knows, or has special reason to know, the recipient will view the text while driving.”  

The appeals court acknowledged that “one should not be held liable for sending a wireless transmission simply because some recipient might use his cell phone unlawfully and become distracted while driving. Whether by text, email, Twitter, or other means, the mere sending of a wireless transmission that unidentified drivers may receive and view is not enough to impose liability.”  Further, the court said, “We also conclude that liability is not established by showing only that the sender directed the message to a specific identified recipient, even if the sender knew the recipient was then driving.”  Rather, the court said, “Additional proofs are necessary to establish the sender’s liability, namely, that the sender also knew or had special reason to know that the driver would read the message while driving and would thus be distracted from attending to the road and the operation of the vehicle.” 

Interestingly, New Jersey’s texting ban makes it unlawful to read or send a text message while driving, so in order to impose liability, the sender would have to know or have reason to know that the recipient is not only driving, but that the driver will break the law and read the message while driving and become distracted.  To that end, the court acknowledged, “The sender should be able to assume that the recipient will read a text message only when it is safe and legal to do so, that is, when not operating a vehicle. However, if the sender knows that the recipient is both driving and will read the text immediately, then the sender has taken a foreseeable risk in sending a text at that time.”

The result reached in this case illustrates the difficulty in applying its holding.  Despite finding that a remote texter may potentially be liable, the court found that, in this case, the plaintiffs did not present sufficient evidence of the remote texter’s knowledge.  Because the remote sender had only sent one text while the recipeint was driving, and the contents of the messages were not entered into evidence, there was no proof that the sender knew her message was distracting the recipient from driving. 

In practice, this holding is certain to present interesting proof challenges for plaintiffs in the state with respect to whether someone “has special reason to know” that a driver will be prone to distraction.  The ultimate takeaway from this case is that, if you are texting a person in New Jersey that you know or learn is driving, and that person immediately responds, stop the communication immediately.  Good practice regardless of potential liability.

The full text of the opinion can be found here.

SCOTUS’s DOMA Decision Illustrates Complexities of Appellate Practice

Image This post was contributed by Hallie Fisher, a third-year law student Duke University School of Law and Summer Associate at LDDK&R.

Last month the Supreme Court issued what can only be deemed a landmark ruling, United States v. Windsor, No. 12-307, 2003 WL 3196928 (U.S., June 26, 2013), which held that Section 3 of the Defense of Marriage Act, commonly referred to as “DOMA,” was unconstitutional.  DOMA was enacted in 1996 to ensure, among other things, that states which restricted marriage to opposite-sex couples would not be required to recognize same-sex marriages lawfully performed in other states.  While much of DOMA remains in effect, the Windsor case resulted in the striking of DOMA’s Section 3, which purported to define marriage only as the union between one man and one woman, and prohibited the federal government from recognizing same-sex marriage for purposes of federal law, as unconstitutional.

The definition of marriage adopted by Section 3 was significant because the federal government confers thousands of benefits upon married couples, including: special treatment under the Tax Code, employment and pension benefits, and even support relating to medical privacy and hospital visitation, to name a few.  DOMA effectively denied lawfully-married same-sex couples these benefits.

As with many pivotal cases on civil and social issues (i.e., Roe v. Wade, Loving v. Virginia, and their progeny), what many articles gloss over is just how these cases get before the U.S. Supreme Court.  The Windsor decision started with one person: Edie Windsor, a widow who had legally married her wife, Thea Spyer, in Canada in 2007. Windsor’s and Spyer’s marriage had been recognized as valid under the principle of comity by the state of New York, where the couple was domiciled.  After Spyer passed away in 2009, Windsor was required to pay over $300,000 in estate tax on her late wife’s estate. A widow from an opposite-sex marriage would not have been required to pay this estate tax because under federal law “any interest in property which passes or has passed from the decedent to his surviving spouse” is excluded from taxation.   26 U.S.C. § 2056(a).

Windsor filed suit against the United States in the U.S. District Court for the Southern District of New York. Windsor prevailed on the merits in the District Court, and the IRS was ordered to refund the tax paid with interest. The decision was appealed to the Second Circuit United States Court of Appeals, which affirmed the District Court’s ruling, holding that Section 3 of DOMA violated the equal protection rights granted by the Fifth Amendment.  Before the appeal was heard by the Second Circuit, the Solicitor General of the United States petitioned the Supreme Court for certiorari, which was ultimately granted, and both parties delivered oral arguments in late March of 2013.

The progression of the Windsor case depicts many of the standard aspects of appellate procedure.  However, one unique aspect of the Windsor case is that the federal government did not defend DOMA’s constitutionality. Generally the Department of Justice is tasked with representing the federal government in matters relating to statutes enacted by Congress, such as DOMA.  Here, though, the Department of Justice, at the insistence of President Obama, refused to defend the Act’s constitutionality.  At the same time, the Internal Revenue Service, an executive agency, was enforcing the provisions of DOMA.  As a result of the government’s refusal to defend DOMA, the Bipartisan Legal Advisory Group (BLAG), subsidized by fundraising efforts of the Republicans of the House of Representatives adopted the defense of DOMA, hired counsel to defend DOMA’s constitutionality, and was granted leave to intervene in the case.

BLAG’s defense of DOMA highlights one of the more challenging aspects of appellate practice.  In cases argued before the Supreme Court, and in appeals at all levels, there are often complex or technical legal questions at issue that may ultimately influence whether the case is affirmed or reversed. For instance, although the main issue in Windsor was DOMA’s constitutionality, another significant issue was whether BLAG even had standing to file an appeal.   It is often the job of appellate counsel to help their clients understand that appeals are not always centered around the main issue at trial, and there can be complex issues raised in an appellate proceeding that may subvert a jury verdict or judge’s ruling even though common sense may dictate another result.

Having an attorney who will be able to understand and argue the facts and complexities of a case competently may not be the only concern, though. During the appellate stages of high stakes cases, especially those involving constitutional and social issues, it is common to have interest groups weighing in on both sides of the issue. In Windsor, literally hundreds of amicus briefs were filed on both sides of the issue, with companies like Google, Starbucks, and Aetna supporting Windsor’s case, and many religious organizations supporting BLAG and the constitutionality of DOMA.  In such high stakes cases, it is important to have appellate counsel who will be able to reconcile the client’s individual needs with the public policy considerations of the outcome of the case.  One should never lose sight of the fact that bringing a case before the Supreme Court, which has the potential to change laws that affect individuals throughout the nation, primarily affects the individual parties to the case.

While Windsor was celebrated as a victory, the victory is small in that the decision left open many important issues, such as adoption rights for gay couples, employer treatment of gay couples under federal laws like ERISA, and even protections in the criminal arena. If individuals are affected by the questions Windsor left open, it is important they contact competent counsel positioned to take on such issues. This is especially important since such cases will not only affect the individual petitioners, but could have important precedential value for others who are similarly situated.

Florida Supreme Court Delimits Economic Loss Rule

In a surprising opinion issued today, the Florida Supreme Court has held that the economic loss rule, which for decades has barred tort claims for damages arising out of a contractual relationship, applies only in the products liability context.  Justice Canady’s dissent called this decision a “dramatic unsettling of Florida law.”  However, business litigation practitioners who have struggled with the application of this doctrine when attempting to assert or defend breach of fiduciary and negligence claims against a party in contractual privity will likely welcome the Court’s rescission from the long line of cases that made the doctrine almost as easy to evade as to apply and the certainty that this decision brings.  The Court’s opinion can be viewed at: http://www.floridasupremecourt.org/decisions/2013/sc10-1022.pdf.