Roundup of Coverage on Proposed Constitutional Amendment 5

Here is a selection of news and commentary on Florida’s proposed constitutional amendment 5 from around the state.

From the Palm Beach Post:

A proposed constitutional amendment that would change the way Florida Supreme Court justices are appointed and give the legislature more control over court rules isn’t a power grab, said a House Speaker who pushed the proposal.
But opponents say Amendment 5 is payback on the part of lawmakers angered by the high court’s decisions removing previous constitutional amendments from the ballot and ignoring the legislature’s instructions.

From Fox13:

Amendment 5 deals with the powers of the courts and the legislature. If you vote “yes” on Amendment 5, that means you want the Florida State Senate to have confirmation power over state Supreme Court appointees, and you also want to allow the House to have access to investigation files when a judge is being investigated.

If you vote “no” on Amendment 5, it would mean that you want things to stay as they are regarding the powers of the courts and the legislature.

From The Citrus Daily:

The proposal has garnered opposition from judges across the state and The Florida Bar, the legal group that represents the state’s 90,000 lawyers.

From The Insurance Journal:

The proposal, pushed through the Legislature by outgoing Republican Speaker Dean Cannon, is seen by the GOP and several conservative groups as crucial to making the court more accountable. Opponents, including The Florida Bar and trial lawyers’ groups, contend it’s a power grab and a blatant threat to the judicial independence.

If approved, Amendment 5 would take sole authority to appoint Supreme Court justices away from the governor and subject them to confirmation by the state Senate. It would also allow both houses of the Florida Legislature to repeal court rules with a simple majority vote, rather than the two-thirds vote now required.

From The Sarasota Herald-Tribune:

Passage of this amendment would expand the Legislature’s reach into the judicial branch. It would require Senate confirmation of state Supreme Court justices, make it easier for legislators to override rules for the court system and make confidential files of the Judicial Qualifications Commission available to the speaker of the House of Representatives.

See my prior post to understand the proposed changes from amendment 5.

Prejudgment Attachment

My article with Bob Warchola, Prejudgment Attachments and Fraudulent Conveyance Claims in Fidelity Litigation: Securing Assets Prior to Judgment-East of the Mississippi, is now up on the Shumaker, Loop and Kendrick website.  Here is the summary of how Prejudgment Attachment works in Florida:

Florida law provides that a judge may issue a writ of attachment “when the debtor (1) Is actually removing the property out of the state; (2) Is fraudulently disposing of the property to avoid the payment of his or her debts; [or] (3) Is fraudulently secreting the property to avoid payment of his or her debts.” Fla. Stat. § 76.05, 76.03 (2012). The plaintiff must show grounds for attachment “by a verified complaint or a separate affidavit.” Fla. Stat. § 76.08. A bond equal to double the value of the attached property is required. Fla. Stat. § 76.12.

A defendant “by motion may obtain the dissolution of a writ of attachment unless the plaintiff proves the grounds upon which the writ was issued and a reasonable probability that the final judgment in the underlying action will be rendered in the plaintiff’s favor. The court shall set down such motion for an immediate hearing.” Id. § 76.24.

The full article is available here:

Prejudgment Attachments and Fraudulent Conveyance Claims in Fidelity Litigation: Securing Assets Prior to Judgment-East of the Mississippi

 

In camera review required for discovery records protected by constitutional right of privacy – James v. Veneziano

In this car accident case, the plaintiff sought defendant’s medical records for the past 10 years based on the belief that the defendant’s medical problems caused the car accident.  The trial court ordered the defendant to produce the records.  The Defendant objected to producing the records on the basis that he had a right of privacy in the records.  On certiorari review, the appellate court reversed, holding, “We find the order departed from the essential requirements of law because when a party challenges a discovery order concerning material to which the party asserts his or her constitutional right to privacy, the trial court must conduct an in camera examination to determine the relevance of the materials to the issues raised or implicated by the lawsuit.”  Accordingly, the appellate court required the trial court on remand to conduct an in camera inspection and an additional hearing to determine the relevance of the records.

 James v. Veneziano, 37 Fla. L. Weekly D2338a (Fla. 4th DCA Oct. 3, 2012)

Understanding Florida’s Constitutional Amendment 5

With Amendment 5 voters in Florida are being asked to approve constitutional changes to Florida’s legal system.  Amendment 5 would change two main areas of law: (1) How the court’s procedural rules are adopted and (2) how Supreme Court Justices are appointed.  In both cases, Amendment 5 would give more power to the Florida Legislature.

You can find the full text of the proposed Amendment 5 here.

Procedural Changes

Currently the Florida Rules of Civil Procedure, and other similar rules governing criminal cases, family law cases, and all other matters before the Florida courts, are written and adopted by the Florida Supreme Court.

You can view an example of one recent amendment by the Florida Supreme Court amending the rules to allow for service by email here: http://www.floridasupremecourt.org/decisions/2012/sc10-2101.pdf

Amendment 5 would shift power over the adoption of the court’s procedural rules from the Florida Supreme Court to the Florida Legislature by allowing the legislature to veto rules amendments with a majority vote by the legislature.

Appointment of Supreme Court Justices

Currently Justices serving on the Florida Supreme Court are appointed by the Governor from a list of nominees provided by a judicial nominating commission (the “JNC”).  The JNC is a partially independent group appointed for the purpose of evaluating judges, but in practice the governor exercises some influence over the JNC.  Ultimately, the decision of whom to appoint as a Supreme Court Justice is made by the Governor.

Amendment 5 would require Senate confirmation of a justice of the Supreme Court before the appointee can take office.  Under Amendment 5 the JNC would still meet and submit names to the Governor and the Governor would still select from the list of people provided by the JNC.  However, instead of the Governor’s selection being final, the Florida Senate would have to approve the Governor’s selection.

Conclusion

Amendment 5, if approved, will give Florida’s legislative branch more control over Florida’s courts.  The changes are likely to make Florida’s court system more political.  The Florida Bar is opposed to Amendment 5.

The Collins Center maintains an excellent and more detailed explanation of the changes as well.

Error to enter Summary Judgment while discovery pending – Almond Entertainment, Inc. v. Bayview Loan Servicing, LLC

Bayview Loan filed a commercial foreclosure action against Almond and later moved for summary judgment.  At some point, it is not clear whether it is before or after the MSJ was filed, Almond moved to compel the deposition of Bayview’s corporate representative.  It is also unclear whether that motion to compel was ever ruled on.

Almond informed the trial court of the outstanding discovery in its memorandum in opposition to summary judgment.  However, the trial court entered summary judgment without Almond having taken the deposition of Bayview’s corporate rep.

The Second DCA found that “the facts had not been sufficiently developed” and overturned the entry of summary judgment.

Almond Entertainment, Inc. v. Bayview Loan Servicing, LLC, 37 Fla. L. Weekly D2353a (Fla. 2d DCA Oct. 5, 2012)

Proposed Constitutional Amendment 5

Amendment 5 to this year’s ballot asks voters to approve an amendment that would “increase the legislature’s authority regarding court rules, increase the access by the legislature to records of the Judicial Qualifications Commission, and require confirmation by the Senate of Supreme Court justices.”  At its October 5, 2012 meeting, the Florida Bar Board of Directors voted to formally oppose Amendment 5.

Update: More on Florida’s Amendment 5